text:
    CRUSE v. THOMPSON.
    No. 7068.
    Court of Appeal of Louisiana. Second Circuit.
    April 30, 1948.
    Rehearing Denied Sept. 15,1948.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellant.
    John J. McKeithen, of Columbia, for appellee.
   TALIAFERRO, Judge.

Plaintiff’s automobile was badly injured when struck by a northbound freight train of the Missouri Pacific Railroad Company, in the Village of Clarks, Caldwell Parish, Louisiana, while it was stalled on the north side of the highway with its rear end a foot or two east of the east rail of the track. He sued to recover the amount allegedly necessary to restore the car to its former condition and for an amount to indemnify him for the loss of its use until it was again put in running condition. Guy A. Thompson, trustee in bankruptcy of the Railroad company was impleaded as defendant.

The accident occurred about the hour of 1:45 A.M., November 17, 194S. The car had been entrusted by plaintiff to his son, James W. Cruse, to be used for his own pleasure the night of the occurrence. The son had as his companion during the night, among others, a young man named Troy L. Kelly, who lived in Clarks. After completing the night’s activities the son drove the companion to his home in Clarks and left him there. He then started back to his own home. The route carried him easterly over defendant’s track. He testified that he was blinded by the lights of another car, approaching the crossing from the south, which forced him to pull his own car so far to his left that it ran upon a post in a guard rail along the north side of the road, and became disabled. Its rear end, as said before, barely cleared the east rail. It seems that the battery connections were injured to such extent as to leave the car without the necessary power to back up from the post. Discovering this situation, plaintiff’s son hastened back to the home of his companion who joined him in a physical effort to dislodge the car but they were unsuccessful. After the lapse of about fifteen minutes they heard the -whistle of the freight train quite a distance south of them. The two boys then ran about a hundred yards down the track in the hope of being able to flag the train. They struck matches and waved their hands. Their efforts were futile. The train passed the crossing and the accident happened.

The following acts of negligence are charged to the operatives of the train, alleged to be the proximate cause of the accident, to-wit:

That the night was clear and had they maintained proper lookout they could or should have seen or did see the burning head and tail lights of the disabled automobile, and could or should have seen the two boys in the middle of the track waving their hands and striking matches in the effort to flag the train in time to have brought it to a stop before the accident; that defendant failed in its legal duty to maintain said crossing in a safe condition for automobile traffic; and but for this, the car would not have stalled. Act No. 1S7 of 1910 and Act No. 132 of 1918 are cited to support this contention.

It is also alleged that said operatives knew that Clarks is a very active business center, through which daily passes a large amount of shipping and knowledge of these facts should have prompted them, while going through said village, to be unusually on the alert.

In addition to the foregoing bases on which plaintiff seeks recovery, in the alternative, he invokes the doctrine of the last clear chance.

Defendant denied that the accident occurred because of carelessness and/or negligence of its servants and representatives in charge of the train, and affirmatively alleges that said accident happened solely because of the negligence of plaintiff’s son in that he carelessly drove the car into the post although he well knew the physical conditions of and about the crossing from having often driven over the same in automobiles. Defendant also denied that there were any extraordinary conditions about the crossing and denied that it failed to maintain same in safe traveling condition.

Further pleading, defendant avers that tlie train was being competently operated and was traveling at thirty miles per hour, a very reasonable speed; that its headlights were burning brightly and in accordance with law; that the engineer saw a couple of men on the track when he was just south of the first crossing below Clarks, and kept his eyes glued on them from that time on; that when about eight hundred feet or nine hundred feet south of them, he realized that they were trying to signal the train to stop; that while keeping his eyes intently on the men he did not see and could not have seen the stalled automobile until his train was within four hundred or five hundred feet of it, at which time the air brakes were applied as in emergency, but that because of the weight of the train and its speed it was impossible to stop it in less than twelve hundred feet.

Plaintiff prevailed below and was favored with judgment for $720. Defendant appealed to this court. The trial judge gave written reasons for the judgment.

The surface of the crossing is about on a level with the surrounding area. The road, after passing over the track, turns northerly. The guard rail referred to was erected many years ago by the Louisiana Central Lumber Company, owner of nearly all the land, buildings and two saw mills in Clarks, mainly as a protection against its own vehicles going into an adjoining ditch. Everyone who motored in Clarks, including plaintiff and his son, knew it was there. The Department of Highwáys of the State registered no objection to it. To drive into the post plaintiff’s son had to abandon his side of the road. He excused himself for so doing because of the lights of another car that came from the south. It was no part of defendant’s legal duty to maintain this privately owned guard rail. It was not a trap, menace or hazard to traffic.

We perceive no merit in this contention of plaintiff. It is not really urged so seriously as is done with respect to the other points in the case. In addition to all of this, accepting plaintiff’s son’s version of the facts, it appears clear that the action of the driver of the other car was the real cause for him running into the post, and doubtless but for this he would have successfully cleared the crossing.

The case turns upon whether the engineer saw or should have seen the stalled car in time to stop the train prior to injuring it.

The train consisted of eighty heavily loaded cars. It was traveling at a speed of thirty miles per hour when the engineer realized that two men were on the track trying to flag him. This was not an excessive speed, all things considered. It was making about twenty miles per hour when it passed the crossing. The testimony is conclusive that this -heavy train going at thirty miles per hour could not be stopped in a distance less than fourteen hundred feet. This is deiiioristrated clearly in the present case. Something in excess of fourteen hundred feet was covered from the time the brakes took effect until the train stopped.

About three thousand feet south of the crossing in question, defendant’s track curves. About eighteen hundred feet south of this crossing there is another crossing at which the engineer gave the customary whistle signal. His testimony does not in the whole track defendant’s answer. He testified that when the locomotive was at or near the lower crossing he saw and recognized the boys as such, but did not observe that they were waving their arms, and when he had traveled about an additional eight hundred feet he applied the brakes as in emergency and after going about one hundred seventy-five feet farther, he saw the stalled car. .

Observing the young -men on the track, apparently in possession of their mental and physical faculties, was not sufficient to devolve upon the engineer- the duty to slow down his train or stop it. It is conceivable, in -fact, true, that people, out of fun or thoughtlessness, do carelessly go upon railway tracks in front of moving trains and remain there until the locomotive is near them, and then jump off. This has been shown to be true in other cases before this court. If an engineer was required to reduce the speed of or to stop his train under such circumstances, it is obvious that' schedules could not well be observed and the danger from train collision would be enhanced.

The engineer testified that he did not see the light from the matches struck by the boys. The brilliance of the train’s headlights militated against him doing so. Naturally, as testified by him, after seeing the boys on the track his vision was focused upon them. He was wondering if they would get off the track before being run over. He continued to watch them until the train was too near the crossing to be stopped before reaching it. It was only necessary that he have done this for a few seconds in order to reduce the distance from the uppe.r crossing to less than fourteen hundred feet. He must have been around nine hundred, feet from the crossing as testified by him, when the brakes took effect because the train .finally stopped five hundred twenty feet above it.

The measure of an engineer’s duty, after, recognizing adults, upon or near the track in advance of his train, was quite extensively discussed by this court in Johnson v. Texas & Pacific Railway Company, reported in 16 La.App. 464, 133 So. 517. Many authorities are therein cited to support the applicable rule of law laid down in 52 Corpus Juris., p. 604, § 2159(4), which we, in part, quote:

“It is a well 'settled rule that, where the railroad employees in charge of a train see a person on or near the tracks in advance of the train, unless they know or can see from his condition, or his conduct,-or from the surrounding circumstances that he will not or cannot retire to a place of safety in time to prevent an accident, they have a right to presume that such person is of sound mind and good hearing and eyesight, and that such person will make a reasonable and proper use of his senses; and where the proper alarm signal or warning, as by bell or whistle, is given to him of the approaching train, they have a right to act on the assumption that he will hear and heed the warning when given, and will retire to, or remain in, a place of safety in time to prevent injury from the approaching train of which he has knowledge or of which, ■ by the ordinary use of his senses, he should have knowledge. * * * ”

The cases of Sorey v. Yazoo & M. V. Railroad Co., 17 La.App. 538, 136 So. 155, and Trotter et al. v. Texas & Pacific Railway Co., La.App., 146 So. 365, are also in point.

It is appropriate here to discuss and apply the principle embodied in the foregoing quotation because if the engineer was justified in not applying the brakes until he did so, after recognizing the boys, obviously he should be excused for not having applied them in time to avoid injuring the car, which was not recognized by him as such until the brakes had already been applied. We do not believe the engineer should be condemned for not having recognized the distressed car before he says he did. There is no force in the contention that he should have seen the lights of the car in time to stop the train before colliding with it. The car’s head lights were focused easterly from the track, and its tail lights were not visible for any great distance.

The established facts' of the case preclude application of the last clear chance doctrine.

After summarizing the pleadings and discussing the facts, the court -said:

“Accordingly, the defendant was under the duty of operating the train in this instance at such a speed as to be able to bring it to a stop within the distance in which its operators, in the exercise of due care, should be able to see objects, such as persons and automobiles, in a position of peril in the path of the train.”

We think this to be an incorrect statement of the law. This was a through train. The time was past midnight when, to knowledge of all, traffic on the highways and in villages is reduced to a minimum. The position of the boys, so far in advance of the train, when first seen by the engineer, was not one of peril. The rule stated by the court has peculiar application to automobiles.

For the reasons herein given, the judgment appealed from is annulled, reversed' and set aside; and there is now judgment in defendant’s favor, rejecting plaintiff’s demand and dismissing his suit, all at his cost.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    COCO v. SMITH et al.
    No. 7198.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1948.
    Rehearing Denied Sept. 15,1948.
    S.Allen Bordelon, of Marksville, and Camden Staples, of Alexandria, for appellants.
    A. J. Roy and W. K. Joffrion, both of Marksville, for warrantor.
    Couvillon & Couvillon, of Marksville, for appellee.
   KENNON, Judge.

This is a hypothecary action by Jules A. Coco against John Smith (and the heirs of Mrs. John Smith) in which plaintiff prays that a 36 acre tract of land standing in the name of the defendants be made subject -to a judgment which plaintiff holds against H. P. Couvillon, who, so plaintiff •alleges, formerly owned the property.

The defendants’ answer set up a valid title in themselves and called the Cotton-port Bank, their vendor, in warranty.

The Cottonport Bank answered, admitting that the Coco judgment was obtained against H. P. Couvillon in May, 1941,'and -that same was recorded, but alleged that Mrs. Couvillon and her husband (now deceased) executed ‘ an ' act of mortgage on the property, with homestead waiver, signed by both Mrs. Couvillon and her husband; that by foreclosure suit the Cot-tonport Bank became the owner of the property at sheriff’s sale and transferred same by valid deed to defendant Smith. The bank’s contention being that since the act of mortgage, on which it foreclosed, contained the waiver of hómesteadj same primed the judgment of plaintiff which was an ordinary judicial mortgage without waiver. .In the alternative, ,the bank pleaded that-in the event the Court should -hold that its- mortgage with homestead waiver was not a lien superior to- plaintiff’s recorded judgment and that the property was not community property, -then that the 36 acres should be held to be the separate and paraphernal property of Mrs. Couvillon and not subject to the legal mortgage resulting from the recordation of plaintiff’s judgment.

'The District Court - rendered judgment in. favor of the plaintiff, from which the warrantor and some of the defendants have appealed. :

The facts are not in serious dispute. At the time the property was. deeded to Mrs. ■H. P. Couvillon (December 15, 1930) she was the wife of H. P. Couvillon. The consideration was partly cash and partly credit, and her husband signed the credit deed with her.' ’ There is no statement in the deed that the property was purchased with her separate and paraphernal funds. Counsel in briefs before this Court make no contention that the 36 acres was not community property and seem’ to have abandoned the alternative plea that plaintiff’s' judgment against the husband did not affect the "property because same was the separate and paraphernal property of his wife.

Under the facts above stated, actual title to the property was vested in the community then existing between Mr. and Mrs. H. P. Couvillon, notwithstanding the fact that she alone was named as grantee in the deed. Article 2402, Revised Civil Code; First National Bank of Ville Platte v. Coreil et al., La. App., 145 So. 395.

This leaves for consideration as the pivotal points in the case whether or not the signing of the mortgage note by Mrs. Cou-villon and the signing of the act of mortgage by both Mr. and Mrs. Couvillon, its recordation, and the subsequent foreclosure and sheriff’s sale under the act of mortgage, had the effect of releasing this 36 acres of homestead property from the effect of the Coco judgment against the husband, H. P. Couvillon.

Under Louisiana law, the husband has the sole authority to bind the community and to execute a note and act of mortgage against community property (except in the rare cases where the wife, due to failure of her husband to provide necessities, may bind the community for the price of same). Article 2404, Revised Civil Code. The learned District Judge correctly found that the wife alone was without authority to grant a mortgage on community property.

We now consider the question as to whether or not the husband’s acquiescence in the homestead waiver resulted in making the note a valid debt of the community and the mortgage a valid one against the 36 acres of community property. ■ War-rantor has urged that, since the husband’s signature appears on the act of mortgage, the community became bound for the obligation, even though he appeared for the restricted purpose of acquiescing in the homestead waiver. We find the law to be adverse to this contention.

In the case of First National Bank of Ville Platte v. Coreil et al., La.App., 145 So. 395, the plaintiff bank had a judgment in solido against J. R. and J. M. -Coreil and seized on July 7, 1931, a certain lot of ground then standing in the name of Francis Coreil. The record shows that on August 28, 1929, Mrs. J. M. Coreil purchased the property. In the act of sale the declaration was made that she was living with her husband at the time and that she was purchasing the property with her .separate, paraphernal funds, 'but did not state that these funds were under her separate administration.

On the third day of July, 1931, Mrs. J M. Coreil sold the property to Francis Coreil without any declaration that she was authorized by her husband and without his signature to the deed. This vendee intervened in the bank’s proceedings against the property, claiming ownership under the deed from Mrs. J. M. Coreil.

The Court noted that there was no declaration in the deed by which Mrs. J. M. Coreil acquired the property that her par-aphernal funds were under her ' separate administration, nor was there any proof of that fact in the record. The Court held that the lot deeded to her became community property, and being a community asset, it was subject to tthe judicial mortgage of the bank resulting from registry of its judgment against her husband.

At the trial of the case, Mr. Coreil admitted that he had verbally consented to his wife’s selling the property to Francis Coreil. However, the Court held that the deed by the wife to Francis Coreil could not change the character of the community-property deeded which remained encumbered with the recorded judicial mortgage of the Ville Platte bank.

The situation in the case before us is different from that which arose in the case of Norman Mayer & Co. v. Montgomery, 187 La. 374, 174 So. 880. There a mortgage was given by the wife and was also signed by the husband. The' mortgage contained a waiver of homestead and after the waiver a clause reading:

“ ‘And now to these presents' intervened Mrs. —-herein duly authorized by her husband, who declared that she hereby joins her husband in the waiver of homestead exemptions hereinabove stipulated.’”

The husband’s name was not filled in in the blank space contained in the above quoted clause. Neither the husband nor wife lived on the premises. The opinion of the Supreme Court, holding that the husband’s signature to the mortgage was not qualified and that the community was bound, noted:

“To give effect to defendants’ contention that the husband signed the act of mortgage to waive the homestead rights, we would have to read a vain and useless stipulation into the act of mortgage. To construe the signature of Thomas W. Montgomery to the act of mortgage in the light of plaintiff’s contention, that it was to authorize his wife or to waive the homestead rights, would be equivalent to giving the husband’s signature a vain and useless meaning.”

A reading of the Montgomery decision indicates plainly that, had the situation been different, i. e., had the Montgom-erys been living on the property and had Mr. Montgomery’s name been filled in the space provided in the homestead waiver joining clause, his, signature would have been considered a qualified one, for the sole purpose of joining in the homestead waiver, and the community would not have been bound. In the case before us, the Couvillon family did reside upon the property at the time the mortgage was given and Mr. Couvillon’s name was filled in at the proper place in the homestead waiver clause. We conclude then that Mr. Cou-fdllon’s signature was for a qualified purpose and that he was not a party to the mortgage,' and same was not valid against the community property.

Having found that the mortgage. and note upon which the Cottonport Bank instituted the foreclosure suit was invalid as against the community which owned the property described in ’ .the sheriff’s deed and purchased by the defendants in the suit before us, it follows that the property remained encumbered- with the judicial mortgage in favor of Jules A. Coco which resulted in the recordation of his judgment against Mr. H. P. Couvillon. The judgment of the District Court holding that this judgment creditor had the -right to enforce his judgment, against this property was correct.

Warrantor in this Court does not contend that it should not be held liable in warranty in the event plaintiff’s claim against the land is held valid.

The judgment appealed from is affirmed, with costs.


author: HARDY, Jr., Judge. KENNON, Judge

text:
    ANDERSON et al. v. LONDON GUARANTEE & ACCIDENT CO., Limited.
    No. 7213.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1948.
    Rehearing Denied Sept. 15,1948.

      Wilkinson, Lewis & Wilkinson, of Shreveport, for appellant.
    Graydon K. Kitchens, of Minden, for ap-pellees.
   HARDY, Jr., Judge.

This is a suit for recovery of damages sustained as the result of an accident while changing a tire on a truck owned by defendant’s assured. Plaintiffs are Negro laborers in thé employ of a gasoline and service station owned and operated by Mr. S. V. Veitch in Minden, Webster Parish, Louisiana. One of the injured .parties, a minor, appears through his mother as .tu-trix. Defendant is the liability insurer of the J. B. Johnson Company. After trial there was judgment in favor of plaintiffs, from which judgment defendant appeals.

About noon, on August 9, 1947, a Dodge truck and Lufkin trailer owned by the J. B. Johnson Company, operated by George H. Talley, an employee, was driven into the Veitch Service Station. Talley requested Mr. Veitch to have a flat tire on the outside wheel of the rear dual wheels of the trailer unit removed and replaced with a spare which was being carried under the .float of the truck. The spare tire was removed by Sammy Smith, one of the plaintiffs, and when-tested showed an air pressure of 65 pounds. At Talley’s request the tire was inflated to 75 pounds. By reason of the fact that a jack necessary to the tire changing operation was in use, the extra tire was left lying on the station floor for some' Í0 or 15 minutes until the jack was available. Smith and the other plaintiff, Bill Anderson, removed the flat tife and began to place the spare tire on the wheel. As Smith and Anderson were squatting down beside the wheel it appears that the lug rim became disengaged with the result that the wheel was forced back into the faces of the two Negroes, causing serious injuries to plaintiff, Anderson, and minor bruises and abrasions to Sammy Smith.

, As best we can appreciate the actual occurrence, it appears that the tire rim referred to by the witnesses as the “lug rim” is a locking device which fitted on the inside of the tire as it was being placed in position on the wheel. When this lock rim became disengaged it acted in the nature of a steel spring, throwing the spare tire into the faces of the plaintiffs as they squatted down beside the wheel to effect the replacement.

There is little, if a-ny, dispute or conflict developed in the testimony of the witnesses with. respect to the facts bearing upon this suit. Other facts material to a consideration of this case, as developed on trial, are that Anderson and Smith were both skilled in changing tires; that Talley, the driver of the truck, was an expert operator of heavy .trucking equipment with some 22 years experience, who- had been driving the particular truck involved in this accident for a period of two years pri- or thereto; that no defect in the assembly of the spare tire was perceived by any of the parties involved; that the inflation of the tire to 75 pounds has no significance in view of the fact that these tires frequently safely carry pressures ranging up to 90 or 100 pounds; that the spare tire in question was a retread which had been fitted with a new tube and assembled by the Firetone Tire Service in Shreveport some two or three months prior to the accident; and that any defect in the lock rim or the adjustment thereof which might have caused the accident could have been determined only by completely taking down the assembly of the spare tire.

It is evident that there was no fault or negligence on the part of plaintiffs with respect to their actions in connection with the operation of changing the tire which contributed in any degree to the accident, and, accordingly, the defense of contributory negligence which was asserted by defendant must fail.

Plaintiff’s petition alleged negligence of the agents and employees of defendant’s assured, both generally and specifically, with respect to the improper mounting of the tire, and the inflation to a pressure of 75 pounds,'as the sole and proximate cause of the accident. Alternatively, plaintiffs asserted the doctrine of res ipsa loquitur. Since the record obviously fails to sustain the charges of negligence, either general or specific, plaintiffs’ astute counsel before this Court, in argument and brief, with admirable wisdom and discretion has chosen to rely upon the operation and enforcement of the doctrine of res ipsa loquitur.

Plaintiffs’ claims are opposed by defendant on the ground of a denial of negligence and an alternative plea of contributory negligence on the part of plaintiffs. An exception of no cause and no right of action was filed on behalf of defendant, which- exception was overruled by the Court, and it appears that the same has been abandoned inasmuch as it is not urged before this Court by counsel for defendant, very probably by reason of the fact that the grounds therefor are fully comprehended in a consideration on the merits.

The learned Judge of the District Court in an able written opinion reached the conclusion that defendants were liable on the basis of a finding to the effect that the accident would not have occurred save for the existence of some defect in the lock rim or the improper mounting thereof, and further, that since there -was no negligence on the part of plaintiffs, they were entitled to recovery.

It is clear that the applicability vel non of the doctrine of res ipsa loquitur is of prime importance in the consideration of this cause, and, accordingly, we proceed to a discussion of the doctrine with relation to its bearing under the facts of the instant case.

This Court had reason to consider and discuss in some detail the doctrine of res ipsa loquitur in the case of Mercer et ux. v. Tremont & G. Ry. Co., La.App., 19 So.2d 270, 273, and from our opinion therein we quote as follows:

“The doctrine of res ipsa loquitur is the doctrine invoked in aid of a plaintiff in instances where the occurrence of the accident itself serves to make out a prima fa-cie case of negligence on the part of a defendant. When the circumstances surrounding the accident indicate that such accident would not ordinarily occur without some particular act of omission or commission on the part o,f a defendant, the mere fact that the accident took place is sufficient to create a presumption of negligence. The theory of the doctrine is intended to protect the rights of an injured person under circumstances surrounding the happening of an accident which leave the cause thereof unknown to the injured party. The law then presumes the superior knowledge on the part of the owner, possessor or operator of the instrumentality causing the injury. Jones v. Shell Petroleum Corp., 185 La. 1067, 171 So. 447; Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11; Pizzitola v. Letellier Transfer Co., La.App., 167 So. 158; Rome v. London & Lancashire Indemnity Co. of America, La.App., 169 So. 132; Gershner v. Gulf Refining Co., La.App., 171 So. 399.
“It is true that the doctrine of res ipsa loquitw is not proof and does not supply a want of proof, but, nonetheless, the application of this rule of evidence creates a presumption of negligence on the part of defendant, which presumption must be rebutted by the defendant in order to relieve him from liability flowing from presumptive negligence. Smith v. United States, 5 Cir., 96 F.2d 976; Asprodites v. Standard Fruit & Steamship Co., 5 Cir., 108 F.2d 728; Daroca v. Metropolitan Life Ins. Co., 5 Cir., 121 F.2d 917.
“Under the facts of the instant case, there is no question as to the applicability of the doctrine. The allegations of the petition negate any action on the part of the injured boy which would have caused the accident, and any knowledge on the part of the plaintiffs as to an explanation of the cause of the particular accident. Clearly, therefore, this case calls for the application of the doctrine, and the burden was upon defendant to clear itself of responsibility.” (Emphasis by the Court.)

The above expression of the theory and application of the doctrine is further substantiated in Watkins et al. v. Gulf Refining Co., 206 La. 942, 20 So.2d 273.

Reiterating and re-emphasizing bur conclusions as above expressed, we aga'in hold and declare that the presumption arising by virtue of the application of the doctrine must be rebutted by the defendant. In other words, the effect of the application of the doctrine i-s simply to charge a defendant with the burden of exculpating himself from a presumption of negligence.

The question before us ¡requires a finding as to whether defendant’s assured has discharged the burden to the extent of clearing itself of liability resulting from negligence. In this connection we heartily agree with the finding of our distinguished brother of the District Court- on the point that the accident was' due either to a defect in the lock rim or the improper mounting thereof. But we do not concur with his conclusion that plaintiffs are entitled to recovery solely 'by reason Of their "freedom from negligence. - ■ ■

Conceding, as established," the fact that the accident was caused by an agency under the control of the defendant’s assured, it is, nonetheless, incumbent upon the plaintiff to show some act of commission or omission constituting negligence on the part of the assured. '

An essential element in the application of the doctrine-of res ipsa loquitur is a showing that a defendant failed to use proper care as to the -instrumentality under his control. Taking the exact situation developed under the facts of the instant case, it is clear from the testimony of plaintiffs and their witnesses that there was no apparent defect in the rim or in its adjustment, and that the only operation which would have determined the existence of a defect in the adjustment of the rim and the locking device thereof would have been a breaking down of the tire assembly and the re-assembly thereof. To hold that the failure of defendant’s assured to take such extreme precautions is an evidential fact establishing liability, in our opinion, would be impracticable and onerous beyond all reason. Such a holding would of necessity entail the imposition of a like operation on the part of the operator of every motor vehicle which drives into a service station and requests the attendants to change a tire. Continuing the illustration, it is further apparent that this very operation, designed as a precaution, could itself result in injury.

We have carefully examined the jurisprudence of Louisiana and other jurisdictions on all points that might bear upon a resolution of this question.

The case of Ross v. Tynes, La.App., 14 So.2d 80, 81, decided by the Orleans Court of Appeal, in which writs were refused by the Supreme Court, somewhat approaches the facts involved in the instant case. In the Ross case the entire rear wheels of a passing truck became disengaged from the axle of the truck and struck a passerby on the sidewalk, ..inflicting injuries which proved to be fatal. A judgment for "plaintiff was affirmed on appeal. The Court thoroughly 'discussed the doctrine óf res ■ipsa ’ loquitur and the application of the principle "of discovery of latent defects". We quote, with emphasis supplied by this Court,1 the following extracts as being particularly -appropriate to the matter before us': ’- ■ :

“In other words, when an injury is caused by an instrumentality under the exclusive control of the defendant, as in this case, and it is such as would not ordinarily happen if the party leaving control of the instnwientality had used proper care, there arises an inference or presumption of negligence. Whether the evidence is such as to exonerate the defendants remains to be seen.
* * * ' * * *
“In Walk v. Boudheim, 223 Wis. 514, 271 N.W. 27, 28, where the brakes locked, the court said: ‘Unforeseen failure of automobile equipment to function because of a condition * ' * * not due to any negligence (of owner), and of which he could not reasonably be expected to have known in the exercise of ordinary care, does not necessarily render him negligent and liable.’
“In Bolin v. Corliss Co., 262 Mass. 115, 159 N.E. 612, 613, plaintiff, standing on the sidewalk, was struck by the rim of a fire which came off of a passing automobile. The Court said: ‘In our opinion this evidence was not such to charge the defendant with negligence. In the absence of anything to show that the appliances were defective, the defendant was not required as a reasonable person to remove the rim and connections and inspect them, before permitting Casper to use the car.’ ”

It is quite true that in the Ross case, as quoted in brief of plaintiffs’ able counsel, the Court declared:

“The long and short of it was that the rear end of this truck constituted a public menace as long as it rolled over the public highway unless it was subjected to frequent and most thorough inspections.”

Pursuing this line of argument in the effort to apply the above quoted’ pronouncements even to the extent of the use of the descriptive word “menace”, counsel contends :

“Here, we have an old Truck, well worn tire, old lock rim, rim and wheel, all the work done by agents and employees of Defendant’s Assured, no inspection for more than two months, and then they brought this ‘menace’ on the.public highway into the place of business where Plaintiffs worked * *

We find no analogy between the facts and the application thereof in the two cases. The testimony in the record before us does not bear out the assertions of such age or wear and tear as would convict the assured of negligence in failure to make inspections of an extensive nature. We do not perceive any element of negligence in the fact that an automobile operator places a spare tire in his vehicle and there lets it remain without inspection or attention for a period of two or three months until the need for its use arises.

A reading of the facts found by the court in the Ross case is sufficient to demonstrate the wide variance which clearly eliminates the same as appropriate authority.

Similarly the facts in Schon v. James, La.App., 28 So.2d 531, which involved an accident resulting from a defect in an old water heater in bad condition removed this case from analogy to the .one under consideration.

Again- the facts in Landry v. McNeil Hunter Motor Co., 11 La.App. 380, 122 So. 293, involving liability resulting from an accident caused by the installation of outlawed equipment, make that case inapplicable here.

It is too well established to admit of argument that even under the doctrine of res ipsa loquitur there must be a showing of some negligence, either active or passive, on the part of the defendant. This is to say that it is not sufficient simply because an agency or instrumentality under the control of a defendant causes injury, liability on the part of such defendant is necessarily implied. There must be a showing that the accident is of a nature which does not ordinarily occur where due care is exercised (Schon v. James and Watkins v. Gulf Refining Co., supra), and, further, there must be a showing, either of some act of negligence or of the omission of some precaution which constituted an actionable want of care. Our jurisprudence is replete with cases which clearly define the degree of care required of an actor, from some of which we cite extracts as follows:

“It is incumbent upon plaintiff, in order to recover, to show some negligence on the part of the defendants * * Woodley v. Service Cab Co. et al., La.App., 159 So. 124, 125.
* * * * * *
“ ‘Negligence’ has been defined to be the failure to use such care as is necessary to avoid a danger which should have been anticipated, by reason of which the plaintiff has suffered injury. Lopes v. Sahuque, 114 La. [1004], 1011, 38 So. 810; Baltimore & P. R. Co. v. Jones, 95 U.S. 439, 441, 24 L.Ed. 506; 6 Cyc. 591.
“A defendant can only be required to guard against a probable or anticipated danger. New Orleans & N. E. R. Co. v. McEwen & Murray, 49 La.Ann. 1184, 1196, 22 So. 675, 38 L.R.A. 134 * * *.” Caillier v. New Orleans Railway & Light Company, 11 La.App. 93, 120 So. 76, 78.
“See also, Brandt v. New Orleans Public Service, Inc., 15 La.App. 391, 132 So. 244.
“The common usage of a business or occupation is frequently stated to be a test of care or negligence, and accordingly, conformity to custom or usage is very generally regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case, * * * 45 Corpus Juris 706.

The Supreme Court of this State in New Orleans & N. E. R. Company v. McEwen & Murray, 49 La.Ann. 1184, 22 So. 675, 680, 38 L.R.A. 134, said:

“ ‘Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event sttch as may happen once in a lifetime, or perhaps twice in a century, does not * * * make out a case of negligence upon which, an action in damages will lie.’ ”

In the same case our Supreme Court quoted with approval from the case of Huber v. LaCrosse City Railway Company, 92 Wis. 636, 66 N.W. 708, 31 L.R.A. 583, 53 Am.St.Rep. 940, decided by the Supreme Court of Wisconsin, affirming what it had said in Block v. Milwaukee St. Railway Company, 89 Wis. 371, 61 N.W. 1101, 27 L.R.A. 365, 46 Am.St.Rep. 849, as follows:

“ ‘The negligence is not the proximate cause of the accident, unless, * * * under all the circumstances, the accident might haive been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence. *• * * A mere failure to ward against a result which could not have been reasondbly anticipated is not actionable negligence.’ ” Keller v. Stevenson, La.App., 6 So.2d 569.
“First — (a)—There is no direct evidence that Kincade or appellant knew the rim was defective. * * * Appellee argues that the test is not'what appellant or Kin-cade knew, ‘ * * * but what, by the exercise of ordinary care, they could have known’. If it be assumed that tire blowouts had occurred, there is no evidence that the malfunctioning of the locking device,. now complained of, was known to appellant or Kincade, or that its actual condition was such as to put a reasonably prudent person on notice.” Sallee v. Shoptaw, 210 Ark. 600, 198 S.W.2d 842, 843.
“It must appear that the driver of an auto was at fault or guilty of imprudence or negligence at the time of the occurrence to entitle his invitee or guest to damages. C.C. 2315; Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A.1917F, 253. In the instant case, defendant could not have foreseen or anticipated the accident, and could not, as appears from the record, have prevented the overturning of the auto even with the most skillful driving. He was therefore neither at fault, negligent, nor imprudent, and cannot be held liable.
. “Counsel for plaintiff endeavors to hold defendant responsible because, as- he contends, ,he knew, at the time he invited plaintiff for the ride to Arnaudville, that the tires on his car were in bad condition. There is no proof that there were any apparent defects in the tires, or that defendant had any reason whatsoever to believe that there were any, latent or otherwise” Banta v. Moresi, 9 La.App. 636, 119 So. 900, 901.
“The owner of ah automobile, delivering it to a repair man for repairs, owes to him the duty to disclose to him any defect in the mechanism which may render it unsafe or dangerous of which such owner had knowledge, but does not owe to him the duty to employ the skill of an expert me-chanician to make an examination to discover such defect before delivering the automobile for repairs.” Varas v. James Stewart & Co., 223 Mo.App. 385, 17 S.W.2d 651, 654.

In New Orleans & N. E. R. Co. v. McEwen & Murray, 49 La.Ann. 1184, 22 So. 675, 38 L.R.A. 134, our Supreme Court announced the doctrine of proximate cause as follows, 22 So. page 680:

‘The negligence is not the proximate cause of the accident, unless, * * * under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence.’ ” Cavaretta v. Universal Film Exchanges, La.App., 182 So. 135.
‘“Test of actiondble “negligence” is not what could have been done to have prevented accident, but what reasonably prudent and careful person would have done under the circumstances. In this connection, failure to guard against a remote possibility of accident, or one which could not, in the exercise of ordinary core, be foreseen, does not constitute “negligence.” ’ Lane v. City of Buffalo, 232 App.Div. 334, 250 N.Y.S. 579, 580.” Wilson v. National Casualty Co., La.App., 191 So. 574, 579.

Summarizing the requirements of proof on the part of each of the parties and the degree of their compliance therewith, certain conclusions appear to be justified. To begin, there was, of course, the duty of plaintiff to show some negligence on the part of defendant (in this case to be regarded as synonymous with the assured). Plaintiffs’ specific charges of negligence were not substantiated and, in lieu of such charges, alternatively, plaintiffs have invoked the doctrine of res ipsa • loquitur. While there is some question from a technical standpoint as to whether the doctrine has been properly invoked in the instant case, we have chosen to accept its applicability under the circumstances.. Therefore, conceding the propriety of plaintiffs’ reliance upon the doctrine, there arose a presumption of negligence on the part of defendant. As the next step there devolved upon the defendant the necessity of discharging himself from the burden of the legal presumption by proving that he was not guilty of any act of commission or omission constituting negligence. We are of the firm opinion that defendant has successfully met this test. It was demonstrated beyond question that there was no apparent defect in the spare tire or its assembly; that any defect which constituted the proximate cause of the accident was latent and consisted either of defective material or faulty workmanship in the assembly of the locking device, a point which still remains a question of speculation; and, finally, defendant is not shown to have omitted any precaution or to have been guilty of any want of care which a reasonably intelligent and prudent individual would have been required to exercise. It is additionally established that the cause of the accident was not one which could ordinarily be expected, foreseen or against the occurrence of which due precaution could have been exercised.

If we assumed a spare tire to be a dangerous instrumentality, we do not feel that even this classification would have established liability on the part of defendant under the facts of the instant case. The rule in this connection appears to us to be well set forth in the Restatement of the Law of Torts, Section 300, as follows:

“When an act is negligent if done without reasonable preparation,' the preparation which the actor, to avoid being negligent, is required to make for the doing of the act is that which he, as a reasonable man, should recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.
* * * * * *
“The preparation which the actor must make is that which he as a reasonable man would regard as necessary.
******
“The word preparation* includes, not only the correction of known defects in a vehicle, tool or other instrumentality, which should be recognized as likely to make its use dangerous, but also such inspection as a reasonable man would recognize as necessary to ascertain whether it is in a condition fit for use. A failure to make an inspection does not create liability unless the inspection, if made, would have disclosed the particular defect which makes its use harmful to another.” (Emphasis by the Court.)

We think it clear in the instant case that the defendant was not in charge of a dangerous instrumentality; that he wa.s not guilty of any lack of reasonable care, and that even under the principles above enunciated, which would apply only to facts requiring the application of a much higher degree of care, he would not be liable. It is undisputed in the instant case that an inspection would not have disclosed the particular defect which was responsible for the. accident.

Reference was made in oral argument before this Court by counsel for plaintiffs to the point that defendant would be chargeable, even in the absence of negligence on the part of its assured, with liability for the negligence of the Firestone Tire Service in Shreveport which assembled the spare tire. This contention was predicated on the claim that the Firestone Tire Service, which was charged with the repair and assembly of the spare tire, thereby became the agent and employee of defendant’s assured, and, consequently, became liable to third persons for the fault or negligence of such agent or employee. This point was not urged in counsel’s brief, nor do we think it worthy of any serious attention. The position assumed would be untenable, first, by reason of the fact 'that there is absolutely no affirmative proof which established negligence on the part of the Firestone Tire Service, a conclusion which could be reached only on the ground of speculation and surmise, and, second, because there is no authority, so far as we have been able to determine, for the conclusion that the mere employment of a concern for the repair of an article constitutes it as an agent and employee for whose negligence the employer would be responsible.

We think that this case is a clear and uncomplicated example on the facts of the existence of a latent defect which caused injury to a third party without any actionable negligence or breach-of care or duty on the part of the owner of said article.

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment in favor of defendant rejecting plaintiffs’ demands at their cost.

KENNON, J.', dissents.

TALIAFERRO, J., concurs.

KENNON, Judge

(dissenting).

I cannot agree with the prevailing opinion in this case for the reason that I believe the doctrine of res ipsa loquitur is applicable.

The tire and rim assembly which caused, the injury was exclusively under the control of the defendant. It had been last assembled by parties other than plaintiff. After the accident, the defendant again took possession.

As far as the record shows, defendant, after the injury, caused no examination of the equipment to be made by persons experienced in handling such equipment. If such an examination were made, the finding must have been unfavorable to defendant as no testimony was introduced as to its condition after the accident.

The rule applicable is aptly expressed on pages 342 and 343 of 37 Words and Phrases, Perm.Ed.:

“ ‘Res ipsa loquitur rule’ is that where the thing causing the injury complained of is shown to be, at the time, under the management and control of the defendant, and the accident is such as in ordinary course of things does not'happen if the one who has control and management of the thing uses proper care, the accident itself affords reasonable evidence, in'the absence of explanation by the defendant, that it arose from want of due care on the part of the defendant. Cullen v. Pearson, 191 Minn. 136, 253 N.W. 117 [254 N.W. 631].”
“The doctrine simply calls upon the defendant, after proof of the accident, to give such evidence as will exonerate him, if any be, and relieves the plaintiff from the burden of proving the nonexistence of an adequate explanation or excuse. Sullivan v. Brooklyn Heights R. Co., 117 App.Div. 784, 102 N.Y.S. 982, 983, quoting Clarke v. Nassau Electric R. R. Co., 9 App.Div. 51, 41 N.Y.S. 78.”

Plaintiff, having proven his injury by an instrumentality under defendant’s control, and defendant, having failed to present such evidence as would exonerate him, becomes responsible under the above well founded doctrine.

For this reason, I respectfully dissent from the finding of law in the prevailing opinion.


author: TALIAFERRO, Judge.

text:
    REA v. DOW MOTOR CO.
    No. 7182.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 1948.
    Rehearing Denied Sept. 15,1948.

      Gist, Thornton & Murchison, of Alexandria, for appellant.

      Eubank, Richey & Richey, of Alexandria, for appellee.
   TALIAFERRO, Judge.

Plaintiff suffered serious physical injuries from, a collision between his two door Dodge automobile and a stationary United States army command car owned by Charles Milby Dow, a resident of the City of Houston, Texas, who is engaged in the business of buying and selling motor .vehicles under the trade name of “Dow Motor Company”. . The accident occurred- at about the hour of 7:00 o’clock P.M., January 29, 1945, on state highway No. 165, two miles south of the Village ' of Glenmora, in Rapides Parish, Louisiana.

Plaintiff, accompanied by his wife and adult son, William, left his home in North-port, Alabama, in the Dodge car, early in the morning of the day of the accident, and reached the City of Alexandria, Louisiana, about the hour of 5:45 P.M. There the plaintiff relieved his son as driver and was at the wheel when the accident occurred. The party was enroute to Port Arthur, Texas, to visit with a married daughter.

Defendant, through a representative, on the day of the accident, purchased several motor vehicles (trucks and cars) from the Government.' Several of his employees had driven to Camp Claiborne, where the vehicles were located, and were taking them to Houston, Texas. This was done in units of two vehicles. The front bumper of one was attached to the rear bumper of another so securely that there could not be lateral movement of’'the rear one.

The party came over in the command car involved in the accident, and on account of the poor condition of its fabric top, this car was attached, bumper to bumper, to one of the purchased trucks that was being .driven by an employee named Louis Peska. This unit was the most northerly of the cqnvoy., The unit immediately in advance of Peska’s was in charge of a Negro man named Hawkins. It consisted of two trucks. Some trouble developed in the mechanism of the front truck of this unit and it was driven entirely onto the west shoulder of the road, twelve feet wide, and stopped to await the arrival of Peska’s unit. Peska is an automobile mechanic and had provided himself with tools to do repair woric should need therefor arise. He observed the parked unit in front of him and drove to within about six inches of it and stopped. The truck occupied by'him was driven at an angle entirely off of the pavement but the rear wheel of the command car rested three feet or more from its western edge. Peska got out of the truck and proceeded along the west shoulder to see what had happened to the Hawkins unit. On being informed of the nature of the trouble, he returned to his own vehicle and as he was climbing upon the seat, with the intention of backing up and then going forward to park in front of the Hawkins unit,- the right front end of plaintiff’s car ran into the left rear corner of the command car and from this collision this lawsuit arose.

Plaintiff alleged that he was driving at a speed of less than thirty-five miles per hour when suddenly blinded by the lights of an approaching automobile going north on said highway; that he then dimmed his own headlights and reduced the speed of his vehicle, but the other driver did not dim his lights and in spite of these precautions he crashed into the command car, the réar end of which blocked all or nearly all of his side of the road; that as soon as he observed the command car in front of him he tried to avert the accident by applying the brakes and swerving to his left. He further alleged that when the accident occurred a light rain was falling and that the command car was camouflaged, due to it having been originally painted olive-drab; that because, of its color the car could .not, under conditions then prevailing, be seen by the use of ordinary care and vigilance.

Plaintiff’s action is predicated upon several instances of negligence accredited to defendant’s agent and employee, Peska, including the following:

That the car was stopped with a portion of it on and over the main paved part of the highway in violation of Rule 15 of Section 3 of Act 286 of 1938; that said vehicle was parked without lights or reflectors of any kind or character to apprise traffic from the north of its presence and position; that no flares were placed on the highway, above and below said unit, as required by law, in order to give notice that part of the paved portion of the road was occupied by it.

Plaintiff alleged that said Dow Motor Company is either a corporation or a partnership; and if the former, the names of the members thereof are unknown to him. Service on the Secretary of State, as provided by Act 184 of 1932, was prayed for, and accordingly made.

Following the overruling of exceptions of no cause and no right of action, defendant answered. The answer is in the name of the Dow Motor Company; and as to legal entity it averred that it is neither a corporation nor a partnership, but an individual doing business under the trade name of “Dow Motor Company”. The name of the individual was not disclosed in the answer.

Defendant alleged that notwithstanding plaintiff’s charges relative thereto to the contrary, the headlights of the command car, as well as its two tail lights, were burning brightly immediately prior to and at the time of the accident, and in addition, as further notice of its presence, to motorists approaching from the north, there were on the rear end of this car two four-inch circular red reflectors that were then normally functioning. Further answering, defendant accredits the accident solely to the negligence and carelessness of plaintiff in that he was driving recklessly on a wet highway at a time when it was-.dark, raining, and visibility poor; that by the,exercise of ordinary care and alertness he should have seen defendant’s car in time to avert running into it; that if plaintiff’s vision was impaired by the bright lights of an oncoming car, as he alleged, and by atmospheric conditions then prevailing, he was grossly negligent in not bringing his car to a complete stop or reducing its speed to the extent and bringing 'it under such control, that he could have instantly stopped it in the event conditions suddenly developed that would make such action necessary.

In the alternative, the above mentioned acts of negligence on plaintiff’s part are pleaded in- bar of recovery by him, should the court find and hold defendant to have been negligent in any respect as a contributing cause of the accident.

The trial judge gave judgment for the plaintiff, and assigned lengthy written reasons to support it. After rendition of judgment but before same was signed, the plaintiff by petition moved to have the case re-opened in - order to allow him opportunity to prove, as he had overlooked doing theretofore, that Charles Milby Dow was the sole owner of the Dow Motor Company as su’ch ownership had not been expressly admitted in defendant’s answer.

A rule issued which ordered the defendant to show cause why the case should not be re-opened “for the purpose of taking testimony to determine the name of the individual doing business as Dow Motor Company”. Service of the rule was made on the attorneys of record of this company.

Defendant vigorously opposed the application to re-open on several grounds, viz: that it came too late after the case had been tried and judgment rendered against the named defendant; that there is no law, statutory or otherwise, to warrant re-opening a case for a new trial thereof, and to adduce testimony to change, alter, amend or contradict the allegations of the petition or answer either by substitution or adding the name of any person or individual as a party defendant therein, or otherwise ; that service herein was made on the Secretary of State under a statute (Act 86 of 1928, as amended by Act 184 of 1932) authorizing siich procedure on the theory that the Dow Motor Company was either a corporation or a partnership; that, in fact, it is neither, nor is it á legal entity, and for this 'reason the service attempted herein is invalid and of no-effect; that to designate said Dow as a defendant and to include his name in the judgment as being the or a párty condemned, would be without legal service and citation under the laws of Louisiana, and in violation of the due process provisions of the Constitutions of the United States and of this State.

Defendant in his answer to said rule:, also excepted to the application to re-open on the grounds that it disclosed neither a cause nor a right of action.

The court sustained plaintiff’s contentions with respect to re-opening the case. Thereafter, he filed an amended petition wherein it is alleged that the defendant herein, Charles Milby Dow, is doing business under the trade name of Dow Motor Company, and who is in reality the sole owner of the business carried on in that name. Testimony taken by depositions amply supports the contention of the plaintiff in this respect. On rule to show cause why this testimony should not be admitted, the Dow Motor Company, through its counsel, of record, but not for Dow, excepted to the rule on the ground that the court is without jurisdiction ratione personae to substitute said Charles Milby Dow, a non-resident, as party defendant in the case, or to render any judgment against him since the suit was not instituted against him, no citation was issued to him, and he has not been served individually or through the Secretary of State to appear and answer plaintiff’s demand; and again he charges that to sustain plaintiff’s position herein and condemn the said Dow for damages sought, would be in violation of the due process provisions of the Constitutions of the United States and of this State. U.S. Const. Amend. 14; Const.1921, art. 1, § 2.

Admissibility of the mentioned testimony was further objected to by Dow Motor Company on the ground that same is not responsive to any of the allegations of the petition, is immaterial, irrelevant, incompetent, and is offered to enlarge the pleadings and substitute a party defendant who was not made so originally.

The court ruled that the proffered testimony was admissible under the allegations of the amended petition, and then signed judgment against “Charles Milby Dow, doing business as the Dow Motor Company”, condemning him to pay to the plaintiff the sum of $15,121.90. Suspen-sive appeal was perfected by Dow and also by the Dow Motor Company.

As we study this record, the pleadings become more' and more interesting. They are unique in that although it is seriously argued and contended that the Dow Motor Company is not a legal entity, has no standing in court as a defendant, and that the service of process herein is invalid and without effect, as against Dow, yet he has in such company a champion who has left no stone unturned to protect him against having to respond for payment under the judgment so vigorously attacked.

Defendant erroneously likens the application to re-open a case for a restricted purpose to a motion for a new trial, and his counsel forcefully argues this proposition. But the premise being not well founded, the argument of necessity loses much of its potency. He argues that a new trial is available only to those persons who are aggrieved by the judgment. The Code of Practice provides that judgments may be revised in four different ways, one of which is by new trial, and prescribes the grounds on and manner and method by which an aggrieved litigant may avail himself of the same. Code of Practice, Articles Nos. 556-563. These articles do not, strictly speaking, control in applications to re-open. Nowhere in this Code, nor elsewhere, do we find any express law that authorizes the re-opening of a case after trial, in order to supply, in a restricted way, evidence appropriate to the ends of justice. However, the practice of re-opening cases for limited purposes is now and has been for a long time well recognized by the courts of this state. Pertinent to this discussion is Code of Practice, Article No. 484, which reads:

“After all incidental questions shall have been decided, and both parties have produced their respective evidence, the argument commences; no witness then can be heard, nor proof introduced except with the consent of all the parties.”

Defendant relies heavily upon this article and if it stood alone it would afford much comfort to him, but the strictness of the rule therein announced has been materially modified by repeated rulings of the Supreme Court. In Succession of Lefort, 139 La. 51, 68, 71 So. 215, 220, Ann.Cas. 1917E, 769, the court, after quoting this article, said:

“This article has been interpreted to mean that, after all parties have announced that the testimony is closed, neither party has a legal right to introduce further evidence, hut that the privilege of doing so may be granted by the court in its discretion and in furtherance of justice. The judgment of the court refusing to admit further evidence will not be reversed by this court unless it is manifestly erroneous and productive of injustice. See Vicksburg Liquor & Tobacco Co. v. Jefferies, 45 La.Ann. 621, 632, 12 So. 743; State v. Chandler, 36 La.Ann. 177, and School Board of Union Parish v. Trimble, 33 La.Ann. 1073, 1079.”

It may truly be said that applications of the character under discussion address themselves to the sound discretion of the court and when sustained, its action will not be disturbed by an appellate court unless it manifestly appears that harmful results or injustice will follow. In the present case it is obvious that by granting the application to re-open no harm or injustice was done.

But appellant vigorously argues that regardless of the general rule above discussed, 'after a case has been tried, submitted and judgment therein rendered, the door is closed to its further consideration by the trial court, except after a new trial or rehearing timely applied for has been granted; such application to be in proper form and supported by proper basis. He cites Lansing et al. v. Miller, 19 La.App. 257, 140 So. 79 to sustain this position. The question tendered in the application to reopen in that case is quite different from that now before us. In that case, to fasten liability on the defendant for the damage caused by the falling of a deflated balloon, depended upon ownership and control of the balloon at the time it ascended and fell. Ownership in the defendant was not admitted in answer and inadvertently was not proven on trial by the plaintiff. Judgment of necessity went for the defendant after which a new trial was applied for on the ground that plaintiff’s counsel was misled by the answer into believing that ownership and control of the balloon were not controverted issues in the case, and, therefore, introduced no proof to establish these very material facts. It was contended that .because of this situation the judgment should have been one of non-suit instead of the'rejection of the demand. This contention was rejected by the lower court for the reason that the answer clearly put at issue the question of ownership and control of the offending balloon. On appeal to this court the judgment was affirmed. This ruling,- in our opinion, should not have any influence in the present case for the primary reason, among others, as we shall hereinafter endeavor to demonstrate, it was not imperatively necessary to< the effectiveness of the judgment as against Dow, that ownership of the business conducted under the trade name “Dow Motor Company” be established prior to signing of judgment. Conversely, in the Lansing case, supra, proof of ownership and control of the balloon at the time of its ascension and falling was absolutely necessary to the success of plaintiff’s case.

The adoption of a trade name by one engaged in business is not only lawful but common practice. It is to be condemned only when done to cover up fraud or other illegal practices. While we have not found nor have we been cited to a Louisiana case wherein the question was tendered, the right to sue in a trade name and the corollary right of others to sue one doing business in such name, is well recognized and established in other jurisdictions. 47 Corpus Juris, §§ 321, 469, verbo “Parties”. Surely, recognition of such rights is free of reasonable objection. It is -entirely conceivable that in a given case the identity of the one who owns the business conducted in a trade name could not be timely ascertained for a creditor to protect himself against the fraudulent acts of the unknown and undisclosed owner. We know that it is common practice to ask for judgment not only against the alleged owner of a business carried on in a trade name, but also against the trade name itself. .Property ■ of the owner, whether standing in his individual name or in the trade name, is subject to execution under judgment against either or both.

To illustrate and emphasize this line of reasoning, suppose John Doe assumed the name of John Roe, and under this assumed name he transacts business and incurs obligations in a place where his true name is not known, and he is sued. Judgment is rendered against John Roe. In these circumstances no one would argue that property owned by and standing in the name of John Doe would not be subject to seizure and sale to satisfy the judgment against John Roe. In the suit of Clemmens v. Washington Park Steamboat Company, C. C., 171 F. 168, the court, after attempt to collect judgment, allowed the introduction of testimony to prove that the defendant was only a trade name under which the Gloucester Ferry Company, a corporation, did business. The court, in passing, very properly held that to permit introduction of said evidence would not have the effect of substituting another person as defendant, but did have the effect of establishing the identity of the true defendant. Of course, it follows by implication, if not expressly so stated, that such evidence would not have the effect of altering or changing the judgment in any material respect.

It is our view of the applicable law that any service of process adequate to bring the Dow Motor Company into court and confer jurisdiction ratione personae upon it, has like effect as to Dow, since he and the trade name, so as concerns this suit, are identical. Evidently Dow had knowledge of the filing of the suit and of the service of process on the Secretary of State, because able counsel was promptly employed and that counsel unreservedly came into court and answered the petition in the trade name. Such an appearance being general, waived every legal objection to the validity of citation and service and to the jurisdiction of the court not only as to the trade name but also to Dow. Article 93 of the Code of Practice. Stanley v. Jones, 197 La. 627, 2 So.2d 45.

The Merits

Plaintiff, while admitting that his car’s headlights illumined the highway for between fifty-five and seventy-five feet, excuses himself on three different grounds, for not seeing the command car, to-wit:

1.That there were no lights on the rear end of the command car nor visible reflectors and that flares, as required by law, were not placed north of the unit to give notice of its presence ;

2. That the color of the command car was olive drab which made it difficult to see;

3. That the corner of the car, being near the edge of the pavement, coupled with reasons Nos. 1 and 2, above, prevented him and others in his car from learning that their lane of travel was partially blocked until too late to avert the accident

Considerable testimony was introduced to prove the color of the command car. Plaintiff’s witnesses all say it was olive drab, the color the Government adopted for its vehicles during the last war, and for obvious purposes; while defendant introduced several witnesses and some documentary proof in the effort to establish that the car had recently been repainted gray. In this connection, however, it makes not a great deal of difference which contention is correct. Both colors reduce the ability of a motorist at night to detect the presence of a vehicle so painted, and both colors, in a measure, blend with the color of the pavement.

Without summarizing the testimony bearing thereon, we hold that it preponderates in favor of plaintiff’s contention that the rear lights of the command car were not burning when the accident occurred, and that the two reflectors thereon were not then functioning. They were intact but evidently were covered with mud, dust or gravel that prevented reflection when shone upon by the lights of a nearby can So far as concerns the headlights of tht command car, whether burning or not, is immaterial as they were focused against the rear of the front vehicle, and could not have been seen by a motorist coming from the north. But, as these lights were attached to the same wiring system that carried current to the rear lights, if the latter were not burning, of course, the former were not.

Peska admits that he did not put out flares when he stopped his unit. We opine that under the circumstances, few drivers would have done so, but the law on the subject is mandatory. Defendant contends that the law (Dart’s Stat. 5309.5, Act No. 215 of 1942, § 2) has no application to the facts of this case, but we construe the law differently. The law includes motor busses, cars for hire, having a capacity of over seven passengers, cars or trucks used as wreckers or for towing purposes, etc. The fact that the truck was being temporarily used for towing purposes does not remove it from the law’s operative effect.

The trial judge, after narrating the facts with respect to the lights, parking of the unit, etc., made the following finding, to-wit :

“I think this record clearly establishes that the defendant’s employee was negligent in parking his vehicle on a dark night, in the rain, improperly lighted in such a manner as to obstruct a part of the highway where it was assumed that others would be traveling. It was also in violation of the highway Regulatory Act of 1938, Rule 15, Section 3, (Act 286 of 1938). Sexton v. Stiles, 15 La.App. 148, 130 So. 821.” We fully concur in this conclusion.

Touching the charge of contributory negligence, the lower court found and we concur therein, that plaintiff was not driving at an excessive speed, all things considered, immediately prior to the collision. The court then made the following observations and conclusions, which we adopt, to-wit:

“Undoubtedly the rear end of the command car occupied approximately three feet of the Concrete driveway. The picture of the Dodge car is in the record and it shows that its right front light and right fender struck the command car. The major damage to the car was on its right side. This indicates to me that the command car was parked in the highway at just such a distance that it would be scarcely observed by the plaintiff but sufficiently in the highway to engage the right portion of the plaintiff’s automobile. In looking down the highway the plaintiff could undoubtedly see past the parked command car and for that reason I think this case would present a different situation had the command car been parked entirely on the concrete slab.

“Under these facts and circumstances was the plaintiff in any wise negligent or was he exercising such a look-out, alertness and maintaining such speed and control of his car as one would expect of a reasonably careful driver? It is my opinion that he was not negligent. He could not have been expected under these facts and circumstances to have seen the command car and avoided the accident. If the law requires more it is against the experience of life and asks too much of a human being. In my opinion, he was operating as the average, careful driver who drives the highway. The accident was due to the negligence of Mr. Peska who parked in the highway.”

The effect of the court’s conclusions, in which we agree, is to constitute this case an exception to the general rule that a motorist must see or will be held to have seen all objects sufficiently large to interfere with traffic on his side of the highway, within the distance well illumined by the lights of his car; and that he will be excused for not having seen such object unless the failure be due to lack of care and vigilance, in the determination of which, all physical, atmospheric and other pertinent conditions should be given proper weight and consideration. The case, as we view it, falls squarely within the doctrine announced in Gaiennie v. Cooperative Produce Company, Inc., et al., 196 La. 417, 199 So. 377, Cole v. Burgess, La.App., 31 So.2d 450, and Warnick et al. v. Louisiana Highway Commission, La.App., 4 So.2d 607.

The facts of this and the Gaiennie case are as nearly identical as could possibly happen in the realm of motoring. In one respect the present case is somewhat stronger for the plaintiff than appears in the other case. In that case the stationary truck angled across plaintiff’s' lane of travel five feet and therefore, would have been more easily seen than the truck involved in the case at bar wherein its corner angled only some three feet over the pavement. In both cases the motorist reduced speed to about twenty miles per hour; the vision of each was impaired by the headlights of an on-coming car; both drivers had dimmed their headlights; and in both cases the accident occurred the moment an on-coming car was met and passed. The court, in the Gaiennie case, said:

“The accident involved herein occurred during the year 1937, prior to the enactment of Act No. 286 of 1938. The law applicable to determine whether or not the plaintiff was guilty of negligence would be Act No. 21 of 1932, Section 3; Rule 4, paragraph (a), which makes it unlawful for any person to drive a motor vehicle upon the roads and highways of this State at any other than a careful, prudent, reasonable and proper speed, having due regard to the traffic, surface and width of the highway, the location and neighborhood, and any other condition or circumstances then existing. The burden of proof is on the defendant to show that the plaintiff was negligent and that his negligence contributed to his injury. Inland & Seaboard Coasting Co., v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Washington & Georgetown R. Co. v. Harmon’s Ad’mr, 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284. This doctrine was approved in Loprestie v. Roy Motors, Inc. et al., 191 La. 239, 185 So. 11.”

Rule 4(a), Section 3 of the Highway Regulatory Act (No. 286 of 1938) is identical in language with that of the 1932 act.

It is worthy of note to here interpolate that this is not a case wherein the motorist was’ totally blinded by lights of an approaching car or by atmospheric conditions, under which conditions this and other courts of the state have repeatedly held that the motorist should either stop his car or reduce its speed to the degree that it could be instantly stopped if conditions suddenly required that this be done to avert a collision. Since plaintiff’s lights enabled him to see clearly down the road, a distance sufficient in which to stop his car, if necessary from sudden emergency, he was not required to do more than he did for his own protection and that of others. . The duty did not devolve upon him to assume that an obstruction to travel, such' as occurred, would be on the west edge of his lane of travel, and in such a position that it would be quite difficult, if. not impossible, under prevailing conditions, to be seen.

Plaintiff in his original petition sued for $11,000.00, including hospital and medical expenses but by amendment, filed one year later, his demand was increased to $36,-000.00. It is alleged that during the time between the two filings his condition had grown worse and the effect of his injuries had proven to be much more far-reaching than when the suit was filed.

The trial judge at length discussed and described the many injuries that plaintiff received, their effect and possible duration. He has so clearly and correctly done this that we again adopt as our own what he has to say on the subject, to-wit:

“The quantum of damages to be awarded presents a rather difficult question for me to determine. There is no serious controversy over the facts concerning the damages sustained and, in fact, they are practically admitted. The difficulty arises because of the present value of money as a result of inflation and the proper amount to be awarded under the jurisprudence of this state.
“The injuries received by the plaintiff were serious and resulted in much pain and permanent injuries. He was brought to the City of Alexandria after receiving first aid in Glenmora and placed in the Baptist Hospital. Upon examination it it was found that he had a laceration of the forehead and across the bridge of his nose; he had a contused wound on his right leg; he had a fracture of the upper rim of the acetabulum with a displacement of the fracture upward with a marked thinning of the acetabulum and the head of the femur was upward approximately three-fourths of an inch. The X-ray showed arthritic changes involving at least two-thirds of the head of the femur where it fit in the abnormal socket caused by the injury. The injuries caused the right leg to-be one inch shorter than the left. There was a chip fracture of the right knee. At the time of the trial there was tenderness there. He had a compound fracture of the jaw and at the time of the trial there was a malalignment which interfered with his mastication of food although there seemed, to have been a good union in both fractures. He also had a fractured rib and from the record he undoubtedly suffered a great deal of pain. He was on a fracture bed the majority of the time in the hospital with traction on his right leg; his jaw was bandaged and it gave him much pain. He has experienced trouble in obtaining a fitting of dentures since the injury to his.jaw.
“At the time of the trial he was using a crutch and a cane and the evidence shows that there was a partial ankylosis of the hip joint as a result of the injury and he experienced some pain on the manipulation of that joint. It was the opinion of the doctors that he is permanently disabled from doing any work which would require .any considerable standing or weight bearing on the right leg and that because of these conditions he will continue to have pain and discomfort from the injury to his jaw and injury to his hip. These are the salient conditions concerning his injury and concerning which there seems to be no substantial controversy.
“The plaintiff is fifty-seven years of age and was in good health at the time of the injury. He seems to have been able to have had a rather substantial earning capacity before the injury and I am doubtful if he will be able to earn anything of consequence in the future unless he finds something he might do in an office or similar work which would not require him to bear weight on his right limb. Under these facts and circumstances it is my opinion that substantial justice would require a judgment in his favor to cover his injuries, pain and suffering in the sum of $14,000.00.”

In addition to the above named award the court allowed recovery for damage to the automobile, hospital and medical bills, etc. in the sum of $1,121.90.

Appellant complains of the judgment as being excessive. Studious consideration of the record, in the light of existing economic conditions, has not convinced us that this is true; nor do we find that the award is inadequate as here contended by appellee.

For the reasons herein given, the judgment from which appealed, is affirmed with costs of suit.


author: MOISE, Justice.

text:
    214 La. 214
    NASSAR v. BOARD OF COM’RS FOR PONTCHARTRAIN LEVEE DIST.
    No. 38990.
    Supreme Court of Louisiana.
    June 15, 1948.
    Rehearing Denied July 2, 1948.
    Aubert L. Talbot, of Napoleonville, and George R. Blum, of Donaldsonville, for defendant-appellant.
    Sigur Martin and Lloyd R. Himel, both of Lutcher, for plaintiff-appellee.
   MOISE, Justice.

This is an appeal by the Board of Commissioners for the Ponchartrain Levee District from a judgment of the district court sustaining an attack by Namatala Nassar, a resident and property owner within the territorial limits of the district, on the proceedings of the board authorizing the issuance of $2,000,000 of negotiable bonds.

The board, availing itself of the provisions of Section 8 of Article XVI of the Constitution of 1921, as amended pursuant to Act No. 398 of 1946, adopted a resolution on October 11, 1947, authorizing the issuance of $2,000,000 of negotiable bonds for the purpose specified in the constitutional provision. This resolution was duly published in the official journal of the board on November 21, 1947. On April 6, 1948, the plaintiff instituted this suit attacking the validity of the bonds. The defendant board filed a plea of prescription of 30 days and 'exceptions of no cause and no right of action, and answering the petition, generally denied the allegations thereof. The case was then submitted on the pleadings.

The trial judge overruled the .plea of prescription and the exceptions of no cause and no right of action and, on the'merits, sustained the attack on the validity of the bonds, rendering judgment accordingly.

The plea of prescription is based on the limitation of 30 days designated by the Constitution as the period within which proceedings may be filed attacking the legality of the bonds, such period to begin from the date of the adoption of the bond resolution or, at the latest from the date of the promulgation of -such resolution, according to the contention of the board.

We think the trial judge properly overruled the plea of prescription. The only limitation placed in the Constitution is that the attack on such bonds must be urged "within thirty (30) days from date of the issuance, of said bonds,” clearly contemplating the printing and signing thereof by the proper officials preparatory to their sale. That this was the intention of the lawmakers is shown when the entire constitutional provision is read, for the board is authorized “to issue, sell and deliver * * * interest bearing, coupon bonds”. No evidence having been adduced on the trial of this case and the record not showing that these bonds have been printed and signed-and are-now ready for sale, it is our opinion that this suit' was timely filed.

The grounds advanced by the plaintiff in support of his attack on the legality of the. resolution of the board authorizing the issuance of these bonds on the merits (1) that they (the bonds) were authorized prior to the approval of the plans and specifications by the Department of Public’Works for the State of Louisiana, (2) that all of the property within the district is sought to be burdened with a debt that is being incurred for the exclusive benefit of the improvements being located in the lower portion of the district, in violation of the 14th Amendment to the Constitution of the United States, and (3) that the prescription period fixed by the Constitution for attacking ■ the legality of the bonds to. be issued thereunder is indefinite and obscure, are without merit.

By this constitutional amendment the Board of Commissioners for the Pontchartrain Levee District is vested with full power and authority, and it is made the, board’s mandatory duty in order to protect the lands situated within this district which borders on the shores of Lake Pontchartrain from the intersection of the Orleans and Jefferson Parish Line to the east end of the Bonnet Carre Spillway from the flood waters released from the Mississippi River through this spillway, to locate, relocate, construct, maintain, extend, and improve levees, embankments, seawalls, jetties, breakwaters and other works in relation thereto. To this end the board is authorized to finance the work by the issuance, sale, and delivery of negotiable, interest bearing coupon bonds, from time to time, in the aggregate of $2,000,000. The responsibility of locating and relocating and constructing these works is placed within the exclusive province of the board. The Department of Public Works is merely designated as the agency through which the preparation of the plans, specifications, and designs are made, and the agency to perform all of the engineering and con-' struction supervision involved in the improvements authorized by the amendment, subjefct'to the approval of the board.

There is no provision requiring the submission of the plans and specifications of the proposed improvements by the Department of Public Works for approval before the board is authorized to issue the bonds: Nor can it be said that the board is acting arbitrarily or capriciously in carrying out the mandate of the Constitution within the powers granted and the limitations imposed. The plaintiff having neither alleged nor shown in what respect he is being deprived of his property without due process, these allegations constitute nothing more than the conclusion of the pleader and need no further comment.

The prescriptive period fixed for ¡attacking the legality of the bonds issued "by the board is not indefinite and obscure, ■as just above demonstrated in disposing of the plea of prescription.

For the reasons assigned the judgment of the lower court is annulled and set aside •and plaintiff’s suit is dismissed, at his cost.