text:
    NORWOOD v. MARANTO.
    No. 7048.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.
    Booth, Lockard & Jack, of Shreveport, for appellant.
    Lee & Emery and Joseph R. Bethard, curator ad hoc all of Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued the defendant, his landlord, to recover judgment for damages allegedly sustained by him as a result of losing his balance and falling down while ascending the front porch steps of the residence leased by him from defendant at 1214 Gilbert Street, Shreveport, Louisiana. He accredited the fall and consequent injury to a defect or rotten place in the lower side, left end, of the riser to the top step.

Plaintiff alleged that at about the hour of 9:45 P. M., March 30, 1946, he returned to his home with his small son, age four, after visiting with his wife, who was then a patient in a sanitarium not far away; that while ascending the steps his mind was preoccupied with his sick wife’s condition, and he carried in his arms bundles of groceries, clothing, ■ etc.; that his young son dashed forward ahead of him onto the unlighted porch and he hastened up the steps after him, thinking he might fall and injure himself; that the left toe and front part of the left foot entered the hole in the riser, above referred to, and caught therein; that simultaneously the rotten supports under the left side of the top step settled slightly under his weight; that he fell forward onto the porch, his right leg striking hard against the sharp forward edge thereof, and that in the fall the tibia of the right leg was fractured in two places.

Defendant denies any liability to plaintiff and denies that the accident occurred in the manner alleged. He pleads alternatively, in the event it should be found and held that the steps were defective and that to this condition the accident should primarily be accredited, the following acts of contributory negligence on plaintiff’s part, in bar of recovery by him, to-wit:

Using the steps in an abnormal manner, that is, as a runway with his arms full of bundles while aware of the defect therein; and, putting his foot into the opening at the bottom of the riser, notwithstanding, according to his own allegations, he had for some time had knowledge of the existence of the said hole and said defect.

Plaintiff’s demand was rejected and he appealed.

It is admitted by plaintiff that the steps were in the same condition at the time of the accident they were in when he and family first occupied the residence, two years prior to the accident. He well knew of the existence of the opening between the riser and the tread of the top step and alleged that the opening was easily observable by all who ascended the steps. He testified that the toe of his shoe went one and one-half inches into the opening.

Plaintiff’s testimony fairly well supports the allegations of his petition, a summary of which we have given above, except those to the effect that the steps sank slightly from his weight at the time his foot was caught. He did not positively testify that this happened, but did testify that pictures taken after the accident, and introduced in evidence, showed the steps to be in the same condition they have been in for two years.

There were no witnesses to the accident except the young son and he was ruled ineligible to testify because of his tender years. Plaintiff also testified that the porch was unlighted and after being hurt he crawled into the house and went to bed. The following morning his condition was such that friends summoned an ambulance that carried him to a hospital.

The learned trial judge reached the conclusion that the accident did not and could not have happened in the manner alleged and testified to by plaintiff. In written reasons for judgment the judge tersely, though forcefully, marshals the pertinent facts. He summarily dismissed, as having no application in the case, the mental distraction doctrine urged by plaintiff in excuse for his own negligence. After a careful study of the record, we have reached the same conclusion as did the trial judge as to how the accident happened, and adopt the written reasons assigned by him to support the judgment rendered herein. Said reasons are here quoted in full, to-wit:

“Plaintiff admits that the condition of the steps was well known to him and seeks to excuse his lack of care by showing that his arms were full of bundles; that his mind was occupied with worry over the condition of his wife, and that his boy had run up onto the porch ahead of him and that he was hurrying to prevent his boy from falling off the porch.
“He was returning from a visit to the hospital, where his wife was recovering from a miscarriage. There is no evidence that her condition was serious. In fact, she came home from the hospital the next morning.
“The porch was only 2½ feet from the ground. Plaintiff testifies that the boy was ahead of him and ran up on the porch up towards the door. If the boy was going toward the door, only three feet away, he was certainly in no perilous position.
“The steps in question — three in number —are clearly shown in the five photographs marked P-1. They indicate that the defect complained of is not a small hole but an open space between the floor board of the top step and the riser from it to' the floor of the porch. The opening seems to be due somewhat to the decay of the lower edge of the riser, but principally to the settling of the left end of the step. It widens gradually from right to left.
“Defendant has marked with an ‘X’ the point where he says his left foot was caught. This ‘X’ is at almost the extreme left end of the step and at almost the widest point in the aperture.
“He testifies positively that his left foot went into the opening to a depth of 1½ inches. This measured from the point of a shoe, establishes the fact that his foot did not enter the opening more than part way of the toes.
“Judging from the proportions shown in the pictures, the allegation in the petition that the hole was 3 inches wide, and the Court’s knowledge of the thickness of a shoe at the toes, it appears impossible for the foot to have caught in the opening as claimed by plaintiff. A foot is not 3 inches thick until well back of the instep. His description of the accident, and the testimony of the doctors, show that the injury suffered was the breaking of the right leg just above the ankle, caused by its striking against the overhang of the floor boards of the porch. He says:
T caught my toe in the rotten place in the steps and tripped. I hit my leg on the top of the porch; on the edge of the floor boards.’
“As stated above, his left toe is alleged to have been caught and his right leg broken. In mounting the steps the feet are placed alternately on each succeeding strip.
“Plaintiff’s left foot was placed upon the third, or top step and he is bound to have been in the act of raising his right foot from the second step and placing it on the floor of the porch. All his weight is bound to have been upon his left foot. In this position his left foot was anchored and unless he hopped, plaintiff could not move it until his weight was transferred to his right foot. This was true whether the left toe was caught in the opening or not. He admits that he placed his left foot too far back on the step. We think this was the proximate cause of the accident. The left foot was placed so far back that his right foot failed to clear the projecting floor of the porch, striking it just above the ankle and breaking the leg.
“This conception of the accident — and no other can be drawn from the facts adduced, shows that the condition of the riser had nothing to do with plaintiff’s accident and resulting injury.”

Pending this appeal the defendant, Joe R. Maranto, died intestate, leaving a widow, Concetta Maranto, and two children as his sole heirs and legal representatives, viz.: Rose Maranto, of full age of majority and Josephine Maranto, a minor who is without a tutor or tutrix. Through appropriate proceedings provoked by plaintiff, the widow and heirs were substituted as defendants-appellees, the minor through Joseph E. R. Bethard, attorney at law, who was appointed by this court as special tutor and curator to said minor. He accepted the appointment and answered the appeal for the minor, praying that the judgment be affirmed and a reasonable fee for his services be fixed by this court. The fee is fixed at Twenty-Five ($25) Dollars, and is taxed as costs.

For the reasons herein assigned, the judgment appealed from is affirmed at plaintiff’s cost.


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    KEMP v. DONNES et al.
    No. 18685.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dee. 1,1947.
    Writ of Certiorari Denied Dee. 15,1947.
    Philip Gensler, of New Orleans, for plaintiff-appellant.
    Robert J. Pitard and M. C. Scharff, both of New Orleans, for defendants-appellees.
   JANVIER, Judge.

Edgar Fortson Kemp, plaintiff, sustained serious painful'injuries in the very early morning of August 8, 1946, when he was struck by an automobile close to the Canal Street neutral ground near the corner of Marais Street in New Orleans. The automobile was a taxicab, owned and driven by Homer F. Donnes.

Kemp alleges that Independent Cab Operators Association, pursuant to the requirements of Ordinance No. 13825 C.C.S., had deposited bonds and securities in lieu of a liability insurance policy, and that the taxicab of Donnes was specifically included among those “covered by said deposit” of bonds and securities.

In addition to this allegation concerning the alleged deposit of bonds and securities by said Association, plaintiff, in a supplemental petition avers that in the operation of the said cab, Donnes, as owner, and the said Independent Cab Operators Association were engaged in a joint adventure or undertaking; that the accident was caused by negligence on the part of Donnes and that therefore both because of the deposit and because of the said joint adventure, Donnes and the said Association are soli-darily liable to him for such injuries and losses as he has sustained.

The Board of Administrators of the Charity Hospital at New Orleans intervened, alleging that certain services and treatments had been rendered to Kemp at the said Charity Hospital and that if there was any liability in defendants, or either of them, there should be judgment in favor of the said Board of Administrators for the value of the said services, to wit, $151.75, with attorney’s fees, interest and costs.

Defendants deny that there was any joint adventure between them, and especially deny that the accident resulted from negligence on the part of Donnes and aver that it was caused solely by negligence • on the part of Kemp, himself, and defendants aver that in the alternative that it should appear that Donnes was negligent in any way, the proximate cause of the accident was not the negligence of Donnes but was the .contributory negligence of Kemp, himself, in the following particulars:

“1. Dashing across a busy thoroughfare in the path of approaching traffic.
“2. Failing to keep a lookout for approaching vehicles.
“3. Running across the street in total and wanton disregard of the approaching traffic.”

From a judgment in favor of both defendants dismissing the suit, plaintiff has appealed.

Kemp resided in Shreveport, La., and at the time of the accident had, for several days, been a guest at the Jung Hotel in New Orleans. This hotel is located on the uptown, lake corner of Canal and Marais Streets. Canal Street is a very wide thoroughfare in the center of which there is an extremely wide neutral ground on which there are located street-car tracks. On the neutral ground between the tracks and between the outside track on each side and the edge of the neutral ground there are wide spaces for pedestrians, especially for those boarding and alighting from streetcars. There are two wide paved surfaces for automobiles, one on each side of the neutral ground.

The night was clear. Plaintiff, in an effort to return to the hotel from other places nearer the so-called business center of New Orleans, had boarded a street-car from which he had alighted on the neutral ground on the river side of the Marais Street crossing. He states that there was a large crowd of people in the car; that quite a number of them alighted at that corner, and that in order to avoid the congestion, instead of crossing in an uptown direction to the side of Canal Street on which the hotel was located, he crossed to the lower sidewalk so that he might wait there until the crowd should disperse and then cross to the upper side, and thus reach his hotel. He says that he was crossing back from the lower sidewalk to the neutral ground when he was struck by the taxicab which was on its way out Canal Street, going in the direction of Lake Pontchartrain. Pie also says that as he stepped from the sidewalk, he looked to his left and saw cars coming and that “there were some of them abreast”; which seemed to be “approximately at the end of the block from where I was standing.” Later he fixed this distance at about 300 feet. He says that he looked again and that they had proceeded “somewhat closer to me”, but “not very much closer.”

Pie then became a little confused in his statements and said that when he looked the second time the cars were about 40 feet away from him. A careful analysis of his testimony on this point convinces us that he intended to say that as he looked this second time the cars had advanced about 40 feet and that they were about 260 feet away from him as he continued in his walk across the street. He says he knew that if they continued at a proper speed he could complete the crossing, and that he did not look at them again until he was struck. Shortly before he reached the neutral ground he noticed four lights very near him, indicating that two cars were bearing down upon him, one in the lane nearest the neutral ground and one in the next lane, and he adds that he was struck by one of these cars but added: “I can’t say which one hit me.”

It is contended that the speed of the taxicab was excessive; that its operator was not keeping a careful lookout for pedestrians ; that he should not have been attempting to pass the other car at the corner, and that he was especially at fault in approaching the intersection at the speed at which he was going since his view was obstructed by the other car on his right.

Donnes, the driver of the cab, says that as he approached the Marais Street intersection there was another automobile to his right, “travelling as I was” and that just before he reached the intersection “a man either run or jumped out into the ‘section’ ”. He says that at that time his bumper was about at the door of the other car to his right and that he applied his brakes immediately but that his car struck the plaintiff. He says too that just before applying his brakes his speed was about 20 or 25 miles per hour. He does not know how many other cars there may have been proceeding as his was at that time.

Counsel for plaintiff attempts to convince us that Donnes was negligent on several counts and was operating his cab in violation of the provisions of the City Traffic Ordinance No. 13702, C.C.S. He says that Donnes should not have been attempting to pass the car on his right as the two vehicles were about to enter the street intersection, and he points to paragraph (e) of Section 12 of Article V which provides that “The operator of a vehicle shall not pass at an intersection any other vehicle travelling in the same direction.”

There is nothing in the record which convinces us that Donnes was attempting to pass the other car. Those two cars and probably others had stopped for a traffic semaphore light at Rampart Street, a few city blocks before reaching Marais Street, and when the light at Rampart Street permitted them to proceed, they all did so. When the accident occurred, just before they entered the intersection of Marais Street, the record does not show where any of the cars were except these two; the other of these two being about a half length ahead of the Donnes car. The record does not show that the Donnes car was passing the other one.

Counsel for plaintiff says that in the manner of speed Donnes was not conforming to the ordinance and this makes it necessary that we determine, if we can, just what was the speed at which the Donnes car was being driven.

Donnes says that his speed was about 20 or 25 miles an hour. We are convinced that none of the other so-called eye-witnesses actually saw the Donnes car until after the impact so that their guesses as to its speed before the accident afford no help. However we think that on this point the testimony of John A. Lopez must be given great weight. He is the official brake inspector of the City of New Orleans. He stated that, .under the conditions then prevalent, if a car such as that operated by Donnes should skid 28 feet after the application of its brakes, he is convinced from various tests that at the time of the application of the brakes it must have been running at a speed of 27½ miles per hour. In spite of much dispute, the record convinces us that the skid marks indicated that the car had skidded 28 feet. As a result, we conclude that the speed of the Donnes car was somewhere between 25 and 30 miles an hour when its brakes were applied. Counsel for plaintiff says that this speed was excessive and he calls attention to Section 3 of Article V of the traffic ordinance and says that such a speed in excess of 15 miles an hour is violative of two provisions of that section.

He points first to one of the provisions to the effect that no vehicle shall exceed a speed of “Fifteen miles an hour except on Boulevards or Through streets, when approaching within fifty feet of and in traversing an intersection when the operator’s view is obstructed. * * * ”

This paragraph further provides that “An operator’s view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the streets entering such intersection for a distance of one hundred feet from such intersection.”

Counsel says that the view of Donnes was obstructed because of the other car to his right.

We note at once the exception in favor of vehicles on boulevards and through streets and we note also that Canal Street is a boulevard within the contemplation of the ordinance because we see in Article I, among the various definitions of terms used in the ordinance, that a boulevard is “any street or avenue with a neutral ground or parkway in its center and a roadway to either side thereof.”

In the second place, we think it very certain that the obstruction to the view of the operator which is contemplated by that paragraph is that which results from a building, a wall, a fence cr seme other similar object and is not such a temporary moving obstruction as that which is sometimes presented when one vehicle is being operated alongside another.

Counsel says that for another reason Donnes should have reduced his speed to not more than 15 miles an hour, and he points to another paragraph of this section which he says requires that, in a business district, no vehicle shall be operated at a speed in excess of 15 miles per hour. That .paragraph provides that a vhicle must not be operated at more than “fifteen miles on all other streets in a business district as defined herein.”

It is true that the scene of the accident was within a business district. A business district is defined as “any street length between intersections where fifty percent or more of the frontage is in use for business purposes * *

We think that counsel has not properly analyzed the entire section 3 of this Article V of the ordinance, and that a proper analysis will show that excepted from this provision limiting speed to 15 miles an hour “on all other streets in a business district * * *” are vehicles on boulevards and through streets, and we say this because in the same section there is a later paragraph which provides that vehicles may be operated at “thirty miles an hour upon any boulevard or through street.” It is true that this 30 mile speed on boulevards and through streets is made subject to the provisions of the first six paragraphs of this Section (b) but the paragraph on which counsel relies and which fixes the speed at not more than 15 miles an hour “on all other streets in a business district” is not one of these six. A reading of the complete section therefore leads to the conclusion that on boulevards and through streets the restriction of 15 miles an hour “on all other streets in a business district” has no application, and that therefore there is in the ordinance no requirement that at that point an automobile should not be operated at more than 15 miles an hour.

If we are wrong in our interpretation of the speed provisions of the ordinance — and we readily concede that these various provisions are quite confusing —still we think that the speed of the car was not a causative factor in the occurrence. It is well settled that even where there is a technical violation of such provision, liability does not result unless it appears that the violation was responsible to some extent for the ensuing accident. In McCormick & Co. v. Cauley, 168 So. 783, 785, we said: “ * * * if plaintiff’s driver violated the ordinance in the matter of speed, that violation was purely technical and was not a factor which contributed in causing the ensuing accident, * *

To the same effect see Henderson v. Percy, La.App., 159 So. 357. We have the same view here. If the speed of the Don-nes car was in excess of the limit fixed in the ordinance — and we repeat that we do not think that it was — this slight excess had nothing to do with the occurrence.

In the first place, we have experienced much difficulty in attempting to understand the reasons, if in fact any existed, for Kemp’s peculiar course, if, as a matter of fact, his course, after alighting from the street-car, was as he describes it. He says that when he got out of the street-car there were 30 or 40 people there, and that therefore in order to avoid this crowd he crossed all the way over to the lower side of Canal Street before turning and recrossing the entire street to the Jung Hotel. The neutral ground of Canal Street is extremely wide. One hundred or more persons could be accommodated there without causing any extreme congestion, and it is hard to believe that under such circumstances he did what he says he did. It is suggested, though there is little or nothing in the record to show it, that he may have become confused and started across the lower side of Canal Street before realizing that he was going in the wrong direction, and that he may then have turned, while in the driveway, and found himself directly in front of the approaching cab.

Even if he did cross completely to the lower sidewalk and did attempt to recross the traffic lane as he says he did, it is evident that while doing so he was hidden from the view of Donnes until just a second or so before he was struck. The other car was between him and the cab and he was doing an extremely dangerous thing in walking out into the street when the cars were as near to him as they obviously were.

It is, of course, true that in spite of this, under the doctrine announced in Rottman v. Beverly, 183 La. 947, 165 So. 153 and extended in Jackson v. Cook, 189 La. 860, 181 So. 195, and discussed in Jones v. American Mut. Liability Ins. Co., La.App., 189 So. 169; his imprudence, or, to use a better term, his extreme recklessness would not necessarily deprive him of his right to recover if Donnes either saw him in time to avoid him or should have seen him. Still we find nothing to indicate that Donnes should have seen him because, as we have already said, it is clear that he was hidden from Donnes by the intervening car, and if he was so hidden, then we do not think that the fact that Donnes was driving his car at a speed slightly in excess of the ordinance, if he was doing so, had anything to do with the accident. It is obvious that Kemp stepped out from in front of the first car directly into the path of Donnes’ car and only a second or two before that car struck him.

There is much disagreement over whether or not he was walking in the so-called pedestrian lane. Even if we assume that he was in that lane, still we are of the opinion that there was nothing to indicate to Donnes that there was danger that a pedestrian might be crossing in front of on-coming traffic.

But beyond all this we find it very difficult to determine just what happened — just where plaintiff was walking and just what he did immediately preceding the occurrence. He, himself, says that he cannot even say which car struck him. A plaintiff must make his case certain. Here he has completely failed to do so. On the record before us we cannot say that the judgment rendered below is incorrect. Of course it is therefore not necessary that we consider the question presented by the contention that the two defendants were engaged in a joint enterprise. We find no liability in either under the circumstances shown here.

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

Affirmed.


author: McBRIDE, Judge.

text:
    DOUGLAS v. HARO et al.
    No. 18665.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dec. 1, 1947.
    Writ of Certiorari Granted Feb. 16, 1948.

      Lemle, Moreno & Lemle, of New Orleans (Pat F. Bass, of New Orleans, of counsel), for plaintiff and appellant.
    Vic Choppin, Jr., of New Orleans, for defendant and appellee, Julian L. Haro.
   McBRIDE, Judge.

John L. Douglas, plaintiff, has taken this appeal from a judgment of the lower court maintaining an exception of no cause or right of action filed against his petition by Julian L. Haro, one of the defendants.

Summarizing the pertinent portions of the petition we find that plaintiff has alleged : That on November 18, 1945, he owned and operated a garage in New Orleans and stored therein, for a consideration, the automobiles of other persons; that he received and accepted for storage, under a contract, a 1940 Buick sedan automobile owned by the New Orleans Bank for Cooperatives; that on the alleged date one of his employees, without his consent, took the automobile out of the garage to perform a mission of his own, and that while the employee was using the automobile thusly, it became involved in a collision with an automobile operated by Julian L. Haro. Plaintiff charges that the accident was caused by the negligence of Plaro, which is detailed in - the petition, and claims from Haro and his insurer, Central Surety and Insurance Corporation, the sum of $663.50, the amount of damages alleged to have been sustained to the Buick automobile. The insurance company made no appearance and filed no pleading, and the matter is before us on the judgment maintaining the exception filed by Haro.

This case presents to us for decision the sole question of whether an action can be brought by a bailee in his own right against a third person, for damages arising from an injury inflicted negligently upon the property which is the subject matter of the bailment. Counsel for both parties concede that this precise point has never been decided by an appellate court in Louisiana, and our independent research fails to discover any authority touching upon the matter.

Under our jurisprudence the transaction between plaintiff and the New Orleans Bank for Cooperatives is characterized as a “hiring” or “compensated deposit”, while under the common law terminology it is a “bailment”. Munson v. Blaise, La.App., 12 So.2d 623.

Plaintiff’s counsel argue that he, as the depositary, is liable to the owner for the amount of damages sustained to the automobile, and cite the case of Gulf & Ship Island R. Co. v. Sutter Motor Co., 12 La.App. 495, 126 So. 458, decided by this court, which holds to the effect that a garage keeper is liable to an owner for damages to an automobile resulting from a theft committed by his employee.

Counsel further contend that whosoever is answerable to another for a thing placed in his possession has such a special interest in it as enables him to maintain against a stranger an action for its possession or for damages inflicted upon it, and cite several cases which they claim support this contention.

The first, of those cases is McGrew v. Browder, 2 Mart. (N.S.) 17, in which the plaintiff was administrator of a succession pending in Alabama, and in that capacity came into possession of a slave which belonged to the estate. The slave was subsequently stolen from him and was ultimately found in the possession of the defendant in Louisiana. Plaintiff sued to recover the slave and the defendant, in resisting the suit, urged that plaintiff, not being the owner, had not the capacity to prosecute the action. The Supreme Court said: “The evidence taken shows that the plaintiff in this case had the slave in actual possession ; and that she was stolen from him. These facts, we are clearly of opinion, authorize him to maintain this action in his own right. From the moment he took into custody the slave now sued for, he became responsible to the heirs; and we understand the general rule to be, that whosoever is answerable to another, for a thing placed in his possession, has such a special property in it, as enables him to maintain an action for the possession, if taken by a stranger. Codolphin’s Law of Executors, 134.”

This court, in the case of Klein v. Anderson, 4 Or.App. 262, passed upon the right of a depositary to bring a suit to recover property entrusted to him, and taken from him by a stranger. The court said, in maintaining the action:

“* * * jurisprudence has recognized the right of a depositary, an administrator or a consignee, to an action to recover property entrusted to his possession and taken from him by a stranger. Morgan v. Bell, 4 Mart. (O.S.) 615, Fowler v. Cooper, Carathers & Co., 3 La. 215, Johnson v. Imboden, 4 La.Ann. 178, Johnson v. Imboden, 7 La.Ann. 110, McGrew v. Browder, 2 Mart. (N.S.) 17, 20, Lannes v. Courege, 31 La.Ann. 74.
“It is true that in those instances the property has been taken surreptitiously and fraudulently from the depositary, but this was a mere accident of the cases, not affecting the principle underlying the distinction.”

In Lannes, et al. v. Courege, 31 La.Ann. 74, a depositary was permitted to sue to recover certain promissory notes unlawfully taken from his possession by the defendant.

In Johnson et al. v. Imboden, 4 La.Ann. 178, it was held that a depository had the right to sue -for slaves fraudulently and forceably taken from him, the court saying: “* * * The slaves being in the possession of the plaintiffs in the State of Arkansas, where the succession is still open and its affairs unsettled, and having been delivered to them by Campbell for safekeeping to await the action of the Court of Probates, it seems to us that their right of possession cannot be drawn in question by a mere spoliator. * * *”

The right of a consignee to maintain an action against a carrier for injuries inflicted upon goods while in transit was involved in Morgan v. Bell, 4 Mart. (O.S.) 615. The court held: “The consignee of goods has, in our opinion, such interest in them as authorizes him to sue for them, if they be withheld in whole or in part, or if they be injured. In the latter case there is a failure on the delivery, according to the bill of lading.”

A commission merchant, in the case of Fowler v. Cooper, Carathers & Co., 3 La. 215, was permitted to recover the value of property consigned to him for sale where it had been wrongfully disposed of by a third person. The court found that plaintiff had “a qualified property in it.”

In all of the cited cases, except one, the depositary sought possession of the property from a stranger who had unlawful possession of it. The exception is Morgan v. Bell, supra, where the consignee was permitted to recover from the carrier for injuries to a shipment of goods. In that case the court found that there was “a failure on the delivery, according to the bill of lading.”

In addition to the above authorities emanating from the courts of Louisiana, counsel have also cited numerous cases decided by courts of some of our sister states, all to the effect that a bailee has the right to bring an action in damages against a third party who inflicts injury to the subject matter of the bailment. Counsel also calls our attention to certain language used in American Jurisprudence, vol. 6, page 387, as follows: “* * * This right of the bailee is also quite generally put on the ground that he has a special property in the articles bailed. Since, however, there is considerable confusion among the courts with respect to the use of the term ‘special property’ as applied to the interest of a bailee in the subject of the bailment, especially in bailments other than for mutual benefit, it is probably preferable to consider a bailee’s right of action in this respect as standing squarely on his possession rather than on any supposed special property therein, for as against a wrongdoer who is a stranger to the bailment, a bailee’s possession may be regarded as title which will support any appropriate action.”

The above common-law rule is also stated in Dobie on Bailments and Carriers, page 64, and Huddy Encyclopedia of Automobile Law, vol. 11-12, sec. 370. The language used by Huddy is as follows: “The bailee of a motor vehicle, subject to the rules governing the law of bailment generally, enjoys a property right or interest in the vehicle, entitling him to assert, as against other persons than the bailor, the usual legal rights incident to, and accompanying the right of possession of personal property. * * * The bailee may sue third persons causing injury to the subject-matter of the bailment.”

The common law cases cited by counsel constitute the footnotes to the above textual citations.

Article 15 of the Code of Practice provides : “An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arises, he may bring his action.”

In many cases decided by our courts it has been held that one without pecuniary interest has no judicial standing to bring an action, and the courts have said that this principle is founded “upon simple, plain common sense.” Ideal Savings & Homestead Ass’n v. Scott, 181 La. 978, 160 So. 783, 784; Quaker Realty Co., Ltd., v. Labasse, 131 La. 996, 60 So. 661, Ann.Cas. 1914A, 1073.

In Weadock v. Eagle Indemnity Co., La.App., 15 So.2d 132, 138, the court said:

“Tort has been defined many times. * * * it is a breach of a legal duty. The fundamental basis of the general law of tort in this state is found in the first paragraph of Article No. 2315 of the Civil Code and reads as follows: ‘Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it; * * *.’
“Every tort action embraces three distinct elements, viz:
“1. Existence of legal duty from defendant to plaintiff;
“2. Breach of that duty; and
“3. Damage as a proximate result.” (Italics ours.)

Counsel for plaintiff argue that the cases from Louisiana cited by them should be controlling here, and that we should follow the doctrine established in those cases in deciding this matter. However, as mentioned above, in all of those cases cited by counsel, with the exception of one, the court had before it the proposition of whether a depositary could sue an illegal possessor to gain possession of the bailed property. The one exception is the case of Morgan v. Bell, supra, where a consignee was permitted to recover against the carrier for injuries to a shipment of goods." But that case seems to have been decided on the premise that there was a violation of the contract of carriage, as the court stated “there is a failure on the delivery, according to the bill of lading.”

The common law doctrine relied upon by counsel has never been adopted by the courts of this state, and in view of the emphatic declaration of the Code of Practice that one without an interest may not sue, the cited cases have no applicability here.

As we have stated, the petition does not allege that plaintiff has paid the owner for the damage to the automobile, nor does it contain an allegation that payment has been demanded of him. Had the plaintiff settled with the owner and obtained a sub-rogation, undoubtedly a different situation would have been presented, but we fail to see how the plaintiff has been damaged to any extent as a result of the accident. It may be that the owner intends never to assert a claim for damages. It is true also that if this plaintiff is allowed to prosecute his claim to a judgment, it could be that he would withhold the amount collected from the owner of the automobile, and thereby unjustly enrich himself at the expense of another. He is not the agent of the owner and has never, so far as the allegations of the petition show, been authorized to institute the present action as such.

As plaintiff in this case has not alleged that he has any interest in prosecuting his action against the defendant, the judge a qua properly maintained the exception of no cause or right of action, and the judgment appealed from is affirmed.

Affirmed.


author: PER CURIAM.

text:
    PLAQUEMINES PARISH SCHOOL BOARD v. DAVIS et al.
    No. 18804.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    L. H. Perez, Dist. Atty., and R. M. McBride, Asst. Dist. Atty., both of New Orleans, for plaintiff-appellee.
    Oliver S. Livaudais, Sr. and Oliver S. Livaudais, Jr., both of New Orleans, for defendants-appellants.
   PER CURIAM.

In each of these six cases, all of which, by consent, were consolidated with a seventh case, Plaquemines Parish School Board v. Chester Davis, both in the District Court and in this Court, the Plaquemines Parish School Board is seeking to expropriate lands within the Parish of Plaquemines alleged to belong to the respective defendants. In each of the cases it is alleged either that the record owner of the land is a non-resident, or that the said record owner has died and that no proceedings have been taken to send the heirs in possession, and in each it is, therefore, alleged that there is necessity for the appointment of a curator ad hoc to represent the respective defendants. In each of the seven cases a curator ad hoc was appointed to represent the absent defendant or defendants. In each of- the cases, except that in which Chester Davis was defendant, an answer was filed by the curator ad hoc, but in the case against Davis, with which all of the others were consolidated and which was the case which seems to have been console dated for the purpose of trial, a plea of unconstitutionality was filed on behalf of all of the defendants in all of the cases. This plea was signed by the curators ad hoc and by Oliver S. Livaudais, Sr. and Oliver S. Livaudais, Jr., as attorneys. At the same time, on behalf of all the defendants, exceptions of no cause of action and no right of action were filed. These exceptions also were signed by the curators ad hoc and by the Messrs. Livaudais as attorneys. From the record we can not ascertain what was the fate of the pleas and exceptions, but on the same day on which they were filed, an answer was filed on behalf of Chester Davis, answer, as we have already said, having previously been filed on behalf of the other defendants by the respective curators ad hoc. The answer on behalf of Chester Davis was signed by the Messrs. Livaudais as attorneys, and the answer was verified by Davis himself by oath made before a notary public.

When the cases were called for trial, all of the defendants in all seven of the cases were represented by the curators ad hoc and by the Messrs. Livaudais as attorneys. Judgments of expropriation were rendered and in each of the seven cases a petition for a devolutive appeal was filed. These petitions of appeal were signed by the Messrs. Livaudais as attorneys for each appellant. Orders were rendered granting appeals and fixing the amount of the bond in each case, and in each case bond was filed for the amount fixed. In the Davis case the appellee filed a rule in the District Court seeking the dismissal of the appeal on the ground that the surety was insolvent, and in each of the other six cases a rule was filed in the District Court seeking the dismissal of the appeal on the ground that the surety on each bond was insolvent, and also on the ground that the attorneys who had signed the petitions of appeal, the Messrs. Livaudais, were not authorized to represent the respective appellants.

When these rules came up for trial in the District Court, they were all dismissed, the judge in each of the seven cases finding the surety sufficient, and in the six cases in which the further contention was made that the attorneys were not authorized to take the appeal, stating that after the signing of the orders granting the devolutive appeals, the court had no jurisdiction to pass on any question except that involving the sufficiency of each of the sureties.

The transcripts were duly lodged in this Court and thereafter a motion was made in the consolidated cases to dismiss all, except that in which Chester Davis is the defendant, on the following ground, to-wit: “That in the above entitled causes No. 2192, No. 2197 and No. 2198, the Defendants and Appellants are represented by Curators, or Attorneys appointed by orders of the above District Court to represent said Defendants, and that the Defendants Frederick C. Butler, and Estate of Michael L. James in the above entitled causes Nos. 2195, 2196 and 2200 likewise are represented by Curators, or Attorneys appointed by said District Court, and the devolutive appeal taken for said Defendants in the within consolidated cause by Oliver S. Livaudais Sr. and Jr. for said absent defendants is done without authority of said defendants, and therefore Plaintiff-Appellee specially pleads lack of authority in said Attorneys to take said devolutive appeal in behalf of said defendants represented solely by said Curators.”

In other words, the appellee is attempting to dismiss the appeal in each case on the ground that the attorney who filed the petitions and obtained the orders for appeal had no authority to represent the respective appellants.

The motion to dismiss is signed by the attorney for the appellee and he, the attorney for 'the appellee, verified by affidavit the truth of the allegations made in the motion to dismiss.

In answer to the motion, all six appellants appeared through the same attorneys who took the appeals and denied all of the facts set forth. They then made the following allegations: “ * * * said Motion to Dismiss does not set forth any state of facts, which, if true, show that Oliver S. Livaudais, Sr. and Oliver S. Livaudais, Jr. as attorneys for respondents lacked authority to take devolutive appeals from the judgments rendered in the above matters, the only allegation of fact in said motion to dismiss being that, because the District Court, on the filing of the suits, appointed Curators ad Hoc to represent some of the Respondents above named, that thereafter said Respondents were represented solely by said Curators ad Hoc, and could not employ counsel of their own choosing to represent them and to take appeals from adverse judgments. Respondents show that a litigant in any case is entitled to be represented by counsel of his own choice, and when such counsel is employed, a Curator ad Hoc, previously appointed to represent the litigant, becomes functus officio.”

This answer is signed on behalf of all appellants by the said Messrs. Livaudais, and it is verified by Mr. Oliver S. Livau-dais, Sr.

We find no merit in the motion to dismiss the appeals. When an attorney at law appears in court to represent a litigant, there is a presumption that he is authorized to do so, and this presumption will not be successfully rebutted by the mere oath of the attorney for the opposing litigant.

Even the litigant whom the attorney claims to represent is affected by the presumption of authority to the extent that strong proof of want of authority must be produced.

In Heirs of Brigot v. Brigot, 47 La.Ann. 1304, 17 So. 825, 826, the plaintiff offered an affidavit, duly authenticated, of widow Brigot, declaring that she had not authorized the attorney to represent her as defendant. The lower court held that the affidavit was ex parte and inadmissible, and the Supreme Court said that the ex parte affidavit in support of assertions made at the time when it was offered in evidence that the attorney was not authorized, was not even the commencement of proof; that it had none of the characteristics of proceedings taken contradictorily with parties in interest, and that it was only a sworn declaration offered without pleading or allegation of any kind. The court also said that affidavits against the acts of attorneys, as not having been authorized, had to be in support of issues directly presented. The Court said that:

“The mere affirmation of a reputable attorney that he is the retained counsel in a cause has the sanctity of an oath. They (the attorneys at law) are the officers of the court, whose principal duty is to be true to the court and their clients.
“The record and the allegations of counsel import absolute verity, as respects the authority to represent their clients.”

In the syllabus of Bender v. McDowell, 46 La.Ann. 393, 15 So. 21, appears the following :

“The substance of our jurisprudence on the subject is that a certain degree of sanctity attaches to the act of an attorney at law, as an officer of court, which raises a legal presumption that it was authorized, and imposes on the client denying his authority the duty of supporting his denial with an oath, in order to overcome that presumption, and put the opposite party to the proof of his authority.

“But this rule is not exclusive of all others, and such an oath is not a condition precedent to the administration of any proof on the part of the party who denies the authority of the attorney. It is permissible for such party to go on the stand, and testify on the subject.” See also Boykin v. Holden, 6 La.Ann. 120, Dockham v. Potter, 27 La.Ann. 73, and Police Jury of Tangipahoa Parish v. Begnaud, 200 La. 1020, 1022, 9 So.2d 399.

. It follows that even if the appellants themselves desired to repudiate the attorneys who purport to represent them, there would be a presumption that the attorneys had been authorized and this presumption would yield only to convincing proof.

Surely it will not do to permit the opposing counsel to accomplish the complete dismissal of these appeals on his mere affidavit that the opposing attorneys are not authorized.

The motion to dismiss the appeals is overruled.

Motion to dismiss the appeals is overruled.


text:
    RADOVICH v. STIPELCOVICH et al.
    No. 18560.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dec. 1, 1947.
    Writ of Certiorari Denied Eeb. 16, 1948.
    Leo L. Dubourg, of New Orleans, for plaintiff and appellant.
    St. Clair Adams & Son, of New Orleans, for defendants and appellees.
   McBRIDE, Judge.

This is an appeal taken by plaintiff, Reno Radovich, from a judgment of the Civil District Court for the Parish of Orleans,, rendered after a trial on the merits, dismissing his suit for damages sustained by his automobile when it ran into the rear of a truck which was parked on the highway at night without lights. The defendants are Frank' Stipelcovich, whose driver had charge of the truck at the time of the accident, and his insurance carrier, The Western Casualty and Surety Company.

The petition alleges that the driver of the truck was guilty of negligence in leaving it unattended on a public highway at night, with no lights thereon and without flares on the highway to warn approaching vehicles of its presence in the roadway. The defense is a denial of negligence coupled with an alternative plea of contributory negligence on the part of plaintiff’s driver such as to bar a recovery.

The accident occurred on October 29, 1944, at about 9:00 o’clock, p. m., on the paved, two-lane highway on the west side of the Mississippi River at a point about five miles below the Town of Port Sulphur, Louisiana. The witnesses testified that the night was clear but dark. Plaintiff’s automobile, a 1939 Buick five-passenger coupe, was being driven by his wife and in it, as passengers, were plaintiff and three of his kinsmen. The car was traveling in the direction of New Orleans. It is conceded by both counsel that the damage to plaintiff’s automobile amounted to $600.

The truck had been operated by one Bernard Stockfelt, the employee of defendant Stipelcovich, and before being parked it had been traveling in the same direction as plaintiff’s automobile was moving. Upon reaching the point where the accident later occurred, the driver of the truck parked it on the highway parallel to the edge of the road, in order that he might visit his home which was nearby. He placed a kerosene flare about 50 feet in front of the truck, one near the left rear wheel, and another about 50 feet behind the truck. These flares were lighted and Stockfelt said he was certain that they were full of kerosene. He then left the truck and about ten minutes later he heard the impact of a collision. Upon reaching the scene he learned that plaintiff’s Buick had run into the rear of the truck. He discovered that the flare which he had placed behind the truck was not burning-, and that it had been turned over upon its side and the kerosene was leaking out. He relighted this flare to safeguard against other accidents.

The charges of negligence against the driver of the truck are as follows: (1) That in leaving his truck on the highway unattended without appropriate signal lights thereon he violated Rule 15, Sec. 3, of Act No. 286 of 1938, and (2) that he also violated Sec. 1 of Act No. 164 of 1936 in that he left his truck on the highway without lights and without proper flares such as this act requires.

Counsel for defendants contend that there was no negligence on the part of the truck driver and argue that he had substantially complied with the provisions of the acts. Counsel suggest that the rear flare, which had been lighted when the truck was parked, had been struck and knocked over by plaintiff’s car and the flame extinguished as a result. However, counsel have not directed our attention to any testimony in the record, and we find none, which indicates in any way that plaintiff’s automobile came into contact with the flare or that it was burning when plaintiff’s car passed it. It may well be that the light had been extinguished by the wind or some other means which has not been shown.

We are unable to agree with counsel that there had been a substantial compliance with the provisions of the acts and considering the circumstances under which the truck was parked and allowed to remain upon the traveled portion of the highway, the driver thereof was guilty of negligence. Section 1 of Act No. 164 of 1936 provides in substance that the operator of a truck, immediately upon bringing his vehicle to a stop upon the traveled portion of a highway, at any time during the period from one-half hour after sunset to one-half hour before sunrise, must place one lighted flare at the side of the vehicle just inside of the black line marking the center of a paved highway, one lighted flare approximately 100 feet in front of the vehicle, and another approximately 100 feet in the rear, and must maintain the lighted flares in such positions during the time the vehicle remains parked.

Regarding plaintiff’s car, the passengers testified that it was being driven about 20 to 30 miles an hour and that just before the collision its speed was slackened to about 15 to 18 miles an hour; Mrs. Radovich, the driver, estimated it from 10 to 15 miles an hour. She and the other witnesses for plaintiff stated that traffic coming down the highway from the opposite direction had been particularly heavy on the night in question and that the headlights of the oncoming cars at times “blinded” them, and that it was necessary that Mrs. Radovich drive with her lights dimmed.

She further testified that with her headlights dimmed she was able to see down the highway for a distance of a “city block” or so, and that an automobile with dazzling headlights passed her “a few hundred feet” before her automobile came into contact with the truck. She did not mention that any other approaching car came into vjew afterward. She then stated that she- continued onward and observed a light on the roadway (the flare which had been placed near the rear wheel of the truck) which she estimated to be some 40 feet in front of her own vehicle, and that upon seeing this light she immediately started applying her brakes, but before the car came to a stop it crashed into the truck.

Reno Radovich, plaintiff, who was riding on the front seat of the car, testified that he saw the flare when the automobile approached to within 50 feet of it, and Pen-rose Radovich, another passenger, testified that he observed it 40 or 50 feet away, and that by its light he could see the left rear wheel of the parked truck.

Plaintiff’s counsel concedes that under ordinary circumstances one who drives his automobile into a stationary vehicle or other obstruction on a roadway is guilty of negligence, but contends that under our jurisprudence this result should be reached in each case only after taking into consideration all circumstances and facts surrounding the particular occurrence. .Counsel cites several cases, in each of which- there was something so unusual as to explain the failure of the driver of the moving vehicle to see a stationáry one,-principally the case of Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377, decided by the Supreme Court, and insists that the instant case falls into that group. The plaintiff in the Gaiennie case was permitted to recover his damages from the defendant under the peculiar facts which were involved: plaintiff was driving at a moderate rate of speed, between 40 and 45 miles an hour, on an open highway, with his car properly lighted, and he slowed down to, between 20 and 25 miles an hour upon meeting approaching cars. Immediately before the accident there were fciur or five cars coming down the highway from the opposite direction following each other, all of them with their headlights burning so brightly as to dazzle the plaintiff’s eyesight intermittently. Plaintiff, with his lights focused downward, ran into a truck which was parked at an angle on the edge of the highway with the body extending out into the road some three or four feet above the ground and some four or five feet beyond the rear wheels. The Court found that under the circumstances involved the plaintiff had not been guilty of contributory negligence in failing to see the truck.

However, the facts in the instant case are not at all similar to those in any of the cited cases. Stipelcovich’s truck was parked squarely in the traffic lane in which plaintiff’s car was moving, and near to its left rear wheel was the flare which plaintiff’s driver and his other witnesses testified they saw from a distance of some 40 to 50 feet.

As stated above, Mrs. Radovich did not mention that any other car came into view from the opposite direction after she had passed the car which she described as having the dazzling headlights a few hundred feet from the location of the parked truck, and it is obvious that after this car had 'passed she should have regained her normal vision and there was nothing which ■should have obstructed a full view of the truck in the beams of her headlights. With her lights dimmed, she could see a block or ■so down the highway and such being so she •should have observed the truck and avoided running into it. She was negligent in not seeing what she should have seen. This view is strengthened by the fact that the lighted flare outlined the left rear wheel of the truck so that it could be seen from a distance of some 40 to 50 feet away.

It is well settled that a driver is guilty of contributory negligence in not seeing what a reasonably prudent person should have seen and would have avoided. O’Rourke v. McConaughey, La.App., 157 So. 598; Hutchinson v. T. L. James & Co., La.App., 160 So. 447; Bordelon v. T. L. James & Co., La.App., 148 So. 484; Safety Tire Service v. Murov, 19 La.App. 663, 140 So. 879; Waters v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578; Raziano v. Trauth, 15 La.App. 650, 131 So. 212; Sexton v. Stiles, 15 La.App. 148, 130 So. 821; Blahut v. McCahil, La.App., 163 So. 195; Woodley & Collins v. Schusters’ Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469; Louisiana Power & Light Co. v. Saia, La.App., 173 So. 537; Hemel v. United States Fidelity & Guaranty Co., La.App., 31 So.2d 38.

The judgment appealed from is affirmed.

Affirmed.


text:
    LEWIS v. GROETSCH et al.
    No. 18769.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.

      St. Clair Adams & Son, of New Orleans, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles and Breard Snellings, all of New Orleans, for defendants and appellants.
   JANVIER, Judge.

On the morning of September 21, 1946, Thomas P. Lewis was driving his 1942 Ford station wagon down St. Charles Avenue in New Orleans, and as he attempted to cross the intersection of Louisiana Avenue, the station wagon ran into the side of a large five-ton truck of the defendants, George Wm. Groetsch and James M. Groetsch, who conduct a wholesale grocery business in New Orleans under the name of 'G. & J. Groetsch Wholesale Grocers. The truck was on Louisiana Avenue, going towards the Mississippi River. The station wagon was damaged, it is conceded to the extent of $371.05.

There was a traffic semaphore light at that corner, and at the time there was a downtown bound streetcar of the New Orleans Public Service, Inc., standing on the neutral ground of St. Charles Avenue, facing towards Louisiana Avenue.

The defendants carried a policy of public liability and property damage insurance which had been issued by Employers’ Liability Assurance Corporation, Ltd.

Lewis brought this suit against the said partners and the said insurance company, praying for solidary judgment in the sum of $371.05 and alleging that the accident had been caused solely by negligence on the part of the driver of the grocery truck in the following particulars :

“1. In driving at an excessive rate of speed while crossing an intersection;
“2. In crossing the intersection on a red light;
“3. In violation of the Traffic Ordinances in the City of New Orleans;
“4. In failing to keep a proper lookout ahead;
“5. In failing to have his vehicle under proper control ;
“6. In failing to accord the right of way tó petitioner’s vehicle by virtue of his proceeding on a green light traffic signal.”

Defendants admit their respective capacities but deny that there was any negligence on the part of the driver of the truck, and aver that the collision was caused by the negligence of Lewis', himself, and they aver that, in the alternative that if ⅛ appear that there was any negligence in the driver of the truck, then that the proximate cause of the accident was the contributory negligence of Lewis. They make the following charges of negligence against Lewis:

“(1) Failing to accord the right-of-way to defendant’s truck by virtue of its having lawfully entered said intersection on a green traffic control light;
“(2) Driving his said vehicle at an unlawful and excessive rate of speed in excess of thirty miles per hour, along a wet and slippery street, in violation of Article V of Section 3 of Ordinance No. 13,702 C. C.S. of the City of New Orleans;
“(3) Failing to keep a proper lookout prior to entering said intersection and in entering said intersection while his view of traffic from the left, and lawfully in said intersection, was screened and obscur'ed by a street-car that was stopped on the netfiral ground along St. Charles Avenue, all in violation of Article. Ill Section 3(a) of Ordinance No. 13,702 C.C.S. of the City of New Orleans;
“(4) Failing to have said vehicle under control;
“(5) Failing to use due caution and care under the circumstances then existing.”

From a judgment for plaintiff as prayed for, defendants have appealed.

The record leaves no doubt that when the Lewis station wagon entered the intersection, the traffic semaphore light facing it showed green and the judge a quo so found, stating, during the trial, that he did not believe the driver of the other vehicle, the truck, who had said that as his truck entered the intersection, the light facing it was green.

Counsel for defendants concede that we cannot hold otherwise than that at the time the station wagon entered the intersection the light facing it was green, but they argue that the record shows that this light had turned to green after the truck had already entered the lake side intersection and that Lewis drove his car into that part of the intersection in which the collision occurred just as the light facing him had turned to green and without allowing sufficient time for the truck, which they say was already in the intersection, to complete the crossing.

Counsel for plaintiff, on the other hand, deqlare that he did not enter the intersection until several seconds after the light had changed and after ample time had been afforded to any vehicle which might be in the intersection to complete the crossing.

The principle which defendants invoke is that which we followed in Thomas v. Roberts, 144 So. 70, which has been approved many times since, and which had, in fact, been recognized before we rendered that decision. It is simply this; that a motorist, even when he enters an intersection on a favorable light may not blindly drive his car into another which has not yet cleared the intersection but must use such care .as an ordinarily careful driver would use under such circumstances. In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294, the Supreme Court recognized this principle saying:

“It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection on a favorable light, is not free from negligence if he collides with another motorist who enters an intersection on an unfavorable light. And it can not and will not be disputed that a motorist can not, in the face of imminent danger, rely upon the right of way accorded him by law. * * * »

In Tooke et al. v. Muslow Oil Co. et al., 183 So. 97, 101, the Court of Appeal for the Second Circuit said:

“Motorists who approach intersections are charged with the duty to vigilantly watch for pedestrians and vehicles caught therein between light changes, and are not warranted in exclusively depending upon a favorable light for the safety of their movements.”

Counsel for plaintiff find no fault with this doctrine but contend that it has no application here for the reason that when plaintiff entered the intersection the light had been green for several seconds and thus there had been afforded to any vehicle, which may have entered just as the light was about to turn, an ample opportunity to complete the crossing. And they argue too that since the view of plaintiff was obstructed by the stationary streetcar, and since ample opportunity had been afforded others to clear the crossing after the light had changed, plaintiff was under no obligation to do more than enter the intersection at a reasonable speed and was not required to stop and peer cautiously around the end of the streetcar to make absolutely certain that there was no other vehicle about to cross in front on him. They also point to the case of Kientz v. Charles Dennery, Inc., and say, as was also said in that case, that while it is true that a motorist, merely because he has a favorable light, may not throw all precautions to the winds [209 La. 144, 24 So.2d 294], * * * “it also can not be disputed that under the traffic light system a motorist, who is proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed. * * * ”

We think that if between the time in which the light became favorable to plaintiff and the time at which he entered the intersection there had elapsed sufficient time for the complete clearing of the crossing by any vehicle which may have been caught in the intersection by the changing light, then Lewis was justified in assuming that there was no other car in the intersection because there was no reason for him to anticipate that some other driver would enter the intersection after the light had changed to red. Had the streetcar not blocked plaintiff’s vision to his left, it is possible that we would feel that he should have noticed the truck even though it may have entered in the face of an unfavorable light, but since his view was blocked his failure to see the on-coming truck was not negligence on his part. The view which we take of the matter makes it necessary that we determine whether plaintiff entered the intersection just as the light turned to green or whether he did not enter until after it had changed to green for several seconds.

The only positive testimony we have on this point is given by plaintiff, himself, and by his two witnesses, Mr. and Mrs. Fenwick Eustis, who were driving down St. Charles Avenue in their car a short distance behind the Lewis station wagon. Plaintiff says that when he was about a block away from the intersection: “I saw it was orange." He follows this with the following statement:

“When I saw it was orange, I slowed down, took my foot off the gas so that it would get a chance to turn green without me coming close to the corner. When I reached approximately the middle of the block it turned green.”

He says that he continued and entered the intersection at a speed of between 20 and 25 miles per hour. When asked whether he had looked to the left before entering the intersection, he said:

“I looked to the left and right. I didn’t see anyone approaching from the right and' I had had a green light for roughly half a block and anybody who was going to come across on the light would have been long past and I didn’t see anyone crossing the street so I went on through.”

Mrs. Eustis says that when she first noticed the light, it was green and that she was then about the middle of the block, and that the station wagon of plaintiff was “not very far ahead.” Mr. Eustis says that when he was about a block away he saw that the light was green and that at that time the station wagon was about 150 feet ahead of his car.

All of this evidence leads to the conclusion that the light facing Lewis turned to green when he was some distance from the crossing, and that several seconds elapsed between the time at which it turned to green and the time at which he entered the intersection. There is only one thing about the testimony of plaintiff which throws doubt on the accuracy of his estimates of the various distances and that is that in spite of the fact that he says that when he was an entire block away the light changed to orange, he says that because he wanted to be sure that it would change to green before he reached the crossing, he reduced his speed. It is well known that when one of these semaphore lights changes to orange or amber that color remains for a very few seconds, and that a driver who is an entire block away, when the light is amber, need not reduce his speed at all because his car could not traverse the entire block before the light has changed to green. This thought leads to the belief that it is probable Lewis was much nearer to Louisiana Avenue than he says he was when the light changed to green. Still, in view of the positive testimony found in the record, we must conclude, as the district judge obviously did, that when Lewis entered the intersection the light facing him had been green for a reasonable time. If so, then the truck must have entered after the light facing it had turned to red, and it follows that there had elapsed a sufficient time for the clearance of the crossing by any vehicle which may have entered it on a favorable light. It follows also that since plaintiff’s view was obstructed, he was not at fault in failing to see that the truck was about to dash across in front of him. In entering the intersection at a reasonable speed several seconds after the light had become favorable, plaintiff did all that the dictates of prudence required of him.

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

Affirmed,


text:
    BEERS v. PETERS et al.
    No. 18629.
    Court of Appeal of Louisiana. Orleans.
    Nov. 3, 1947.
    Rehearing Denied Dec. 1, 1947.
    Writ of Certiorari Denied Peb. 16, 1948.
    For former opinion, see 29 So.2d 611.
    Peter J. Compagno and L. R. Graham, both of New Orleans, for plaintiff and appellant.
    Harry R. Hill, of New Orleans, for defendants and appellees.
   PER CURIAM.

In our original opinion we adjudicated this case on the faith of a certificate ordering a refund of. rental which had been issued on June 14, 1946, by the Rent Director of the Office of Price Administration. Defendant-appellee filed an application for a rehearing, pending which (on May 20, 1947) the Rent Director modified his order. Because of that fact we granted a rehearing, at which the new order of the Rent Director was presented to the Court. We believe that the ends of justice would be subserved by remanding this cause so that the modified order dated May 20, 1947, might be admitted into evidence and the case adjudged by the lower court on the basis thereof and in accordance therewith.

For the reasons assigned our original decree herein is recalled; the judgment appealed from is reversed, and this cause is remanded to the lower court for further proceedings not inconsistent with the views above expressed. Costs of this appeal are to be borne by defendant-appellee; costs of the lower court are to await final determination of the case. The right is reserved to the parties to apply for a rehearing herein.

Reversed and remanded.


author: HARDY, Judge.

text:
    LAMBERT v. GREENE.
    No. 7093.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

      James W. Jones, Jr., of Natchitoches, for appellant.
    Gahagan & Pierson, of Natchitoches, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff, as lessor of a planer mill, seeks to recover certain sums alleged to be due from defendant-lessee by reason of unpaid rental and damages to lessor’s property. Plaintiff also sought the cancellation of the lease agreement. In aid of the enforcement of his demands plaintiff caused writs of attachment to issue , and seized property belonging to defendant on the basis of the alleged fact that defendant was a non-resident of the State of Louisiana.

Defendant moved to dissolve the writ of attachment, which motion was based on two grounds, first, that the defendant was not a non-resident of the State, and, second, that the verification of plaintiff’s petition was made by affidavit of his attorney at a time when the plaintiff was present in the Parish of Natchitoches.

After hearing, the motion to dissolve was overruled, whereupon defendant, reserving his rights under the motion, filed an answer generally denying the allegations of plaintiff’s petition, and reconvening on a claim in the amount of $908.67 alleged to be due by plaintiff.

The suit was tried on the merits and there was judgment in favor of plaintiff and against the defendant in the amount of $248.85, which judgment further maintained the writ of attachment, ordered the dissolution of the lease agreement and by implication rejected defendant’s reconven-tional demand. From this judgment defendant appealed.

The contract of lease between plaintiff and defendant was entered into on August 26, 1946, for a term of 12 months fixed as beginning August 19, 1946. Under the provisions of this instrument plaintiff leased a planer mill and premises for a stipulated consideration of $1.50 per thousand feet of all lumber planed at the mill. Defendant-lessee agreed to operate the mill on a full time basis and to make payments of the consideration monthly on the basis of the board feet planed the preceding month.

Another provision of the lease which is at issue in this suit obligated the lessee to keep the improvements on the mill in a good state of repair and to return same to the lessor at the termination of the lease in as good a state of repair as when lessee took possession, with the exception of reasonable wear and tear.

We shall proceed first to dispose of the points raised in the motion to dissolve the attachment.

The facts adduced on trial of the motion to dissolve, in our opinion, conclusively support the allegation of defendant’s non-residence. It was established that defendant, his wife and young son, did come to the City of Natchitoches, Louisiana, in or about the month of July, 1946, shortly before the execution of the agreement of lease between plaintiff and defendant, where they lived in a rented apartment, but it was shown that defendant owned a home in Sweetwater, Texas, where he had resided for some time; that though he had rented the home on a month-to-month basis upon leaving Sweetwater, nevertheless, he and his family had lived in the home as late as December, 1946, for a short period of time. Defendant himself testified that he had paid the poll taxes of himself and wife in Sweetwater in December, 1946, and that he had actually voted in the Texas primary election of July, 1946.

Defendant was engaged in the lumber business and it was shown that he had interests in Texas and Mississippi in addition to his interest in operating the planer mill in Natchitoches Parish, Louisiana.

We do not think anything worthy of consideration was presented on trial of the motion which would justify finding that defendant had surrendered his residence in the State of Texas. On the contrary, the only reasonable conclusion which could be reached on the basis of the evidence would be that defendant was temporarily residing in the Parish of Natchitoches purely as a matter of convenience in connection with the operation of the mill which he had leased from plaintiff for a term of one year.

The other point which was raised by defendant was with reference to the sufficiency of the affidavit of plaintiff’s attorney which was appended to the petition.

It is shown by the record that plaintiff’s petition was verified by affidavit of his attorney made on the 17th day of December, 1946, on which date the petition was filed. But there is attached to the petition the affidavit of plaintiff himself swearing to the correctness of the facts set forth in the petition and further declaring the defendant to be a resident of Texas, necessitating a writ of attachment to protect plaintiff.

It is pointed out that the affidavit of plaintiff above referred to is dated December 16, 1946, and an attempt was made on the part of defendant to show that such affidavit was executed prior to the drawing of the petition. However, defendant failed to prove this fact. Plaintiff’s counsel testified that the petition had been dictated to his stenographer and that plaintiff knew the contents thereof. This witness explained the discrepancy in dates on the ground that it was the routine of his office for his secretary to date documents at the time she actually typed them rather than on the date of dictation. The witness further testified that the petition which was actually filed had been dictated when he himself typed the affidavit which plaintiff signed.

Reference to the affidavit which was brought under consideration discloses that plaintiff swore to the correctness of the facts set forth in the petition. The affidavit also contained the essential and necessary statement of the non-residence of defendant, which fact, of course, constituted the basis for the issuance of writs of attachment.

In our opinion plaintiff’s affidavit complies with the requirements of verification as prescribed by the Code of Practice, in connection with the issuance of conservatory writs, and the fact that it was actually executed the day before the petition was dated and filed is not such an irregularity as to constitute a material defect.

For these reasons we find no error on the part of the Judge of the district court in overruling the motion to dissolve, which action is herewith affirmed.

As to the merits, it is established that defendant ceased operation of the mill some time during the month of November, 1946, despite the obligation of the lease agreement to operate the mill full time. True, defendant claimed that the cessation of operations was necessitated by unfavorable weather conditions, but this claim was successfully controverted by the testimony of witnesses for plaintiff. However, we see no purpose which would be served by a discussion of the details of testimony bearing upon this point, in view of the fact that the term of the lease has expired and any question as to the right of plaintiff to a cancellation thereof has passed out of the case and become moot.

Defendant acknowledged that the sum of $151.49 for lumber planed at the mill as claimed by plaintiff was due and owing.

The balance of the amount claimed by plaintiff is made up of sums alleged to be due for the repair of a furnace allegedly broken and rendered useless by defendant, in the amount of $50; for the repair of a shed on the leased premises torn down by the defendant, in the amount of $25; and for the destruction of belting by defendant to a value of $90.

In a well reasoned written opinion our learned brother of the district court allowed the item claimed for damage to the furnace in the sum of $50, together with an amount of $47.36 for siding used by defendant in the construction of an office building. The learned Judge called attention to the fact that plaintiff did not sue for this amount, but that the account filed by defendant representing the sum to be due plaintiff had the effect of enlarging the pleadings to that extent.

On the basis of these items the amount of the judgment in favor of plaintiff was made up in the sum of $248.85.

Plaintiff’s claim for belting destroyed was disallowed by the Court on the ground that the belting had been replaced by the defendant, which belting the Court assumed to have been left on the mill by defendant. The Court further disallowed plaintiff’s claim for damages to the shed.

On the basis of the testimony of the witnesses, we find these conclusions of the district judge to be more than adequately supported, and defendant has failed to point out any manifest error in connection therewith.

The reconventional claims of defendant consisted of a sum of $300 alleged to be due by plaintiff as the cost value of an office building erected on the leased premises, together with other miscellaneous items of expenses for new belts, babbitt metal, etc. Defendant’s statement showed as the total amount claimed on all these items the sum of $360.16, against which he allowed plaintiff credits of $151.49 for lumber planed and $47.36 for siding used, leaving an alleged balance in favor of defendant of $161.31.

With reference to the items comprehended by these claims, we are of the opinion that the district judge correctly held that the alleged cost of the erection of the office building was not recoverable since it was to be considered as that character of improvement on leased premises which was subject to removal by the lessee at the expiration of the term of the lease, and that the items of belting, etc., should properly be considered repairs which lessee was obligated to make under the terms of the lease.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent.


author: TALIAFERRO, Judge.

text:
    BERNSTEIN v. CATHEY & CARRELL TRUCK LINES.
    No. 7119.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 31, 1947.

      Irion & Switzer, of Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O’Quin and Ben C. Dawkins, Jr., all of Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff suffered physical injuries and his car was badly damaged from a collision between it and a truck owned by the defendant on the Greenwood Road in the western part of the City of Shreveport, Louisiana, at the hour of 4:30 A.M., September 27, 1946. This street, in a general way, runs easterly and westerly.

Plaintiff was driving his own car and was going westerly. The truck was attached to a large trailer and was stationary at the time of the collision. The truck’s driver, defendant’s agent, had backed the trailer from the street northerly very close to the south wall of an A. & P. store, and was then delivering therefrom to that store some merchandise. The trailer is twenty feet long and extended from the sidewalk, adjacent to the store, southerly across a paved area to about the north side of the street proper. If the truck had remained in front of the trailer it would have preempted all or nearly all of the north one-half of the street, or twenty-five feet. But this was not done. The driver cut the truck to its left and faced it easterly at right angles to the trailer. It was, therefore, on plaintiff’s side of the street when the collision occurred. Plaintiff’s car ran almost squarely into its front end.

This suit was instituted by plaintiff against the defendant, a' commercial co-partnership, and its component members, all residents of the State of Texas, to recover damages and loss sustained by him in consequence of the accident. He avers that at the time thereof it was raining heavily, his car was on its proper side of the street, going at at a speed well below that authorized by ordinance of the City of Shreveport; that the headlights of his car were burning brightly, and when about the middle of the 2700 block there suddenly loomed in front of him said truck, which, he says, completely blocked the north (his right) side of the street and was without burning lights of any kind; that on account of the darkness of the night, the heavy rain that was falling, and the lights of automobiles coming easterly on the street, visibility at said time and place was quite poor; that when he had passed the lights of the oncoming cars he was then immediately upon said truck, too close to avoid running into it although he endeavored to do so by application of the brakes and pulling his car to its left.

He further alleges that the collision occurred solely from the negligence of defendant’s agents in charge of the truck in the following particulars, to-wit:

Parking the truck crosswise the street so as to block all traffic on the north side thereof; having no burning lights thereon at time of the collision and not placing flares on the street as required by law.

Defendant denies any negligence on the part of its agents as the cause or a contributing cause of the collision, and denies specifically all other allegations of the petition designed to serve as the básis for recovery herein. In the alternative, the contributory negligence of plaintiff in several respects is specially pleaded in bar of recovery by him, among which are the following :

1. Failing to maintain a proper and adequate lookout ahead;

2. Failing to operate his car under proper and careful control, so as to be able to stop or turn it aside in the event of sudden ■necessity therefor, 'within the distance illumined by his headlights;

3. Driving his car while under the influence of intoxicating liquor which caused his reactions to be slow, his thinking and powers of observation to be foggy.

Defendant, assuming the position of plaintiff in reconvention, sued plaintiff for the amount expended by it to repair the injuries done to the truck in the accident and for loss of its use while being repaired.

The court rejected plaintiff's demand and rendered judgment against him on the re-conventional demand, except for remuneration sought for the loss of use of the truck. Plaintiff appealed.

Defendant has not answered the appeal and evidently is satisfied with the judgment.

We are convinced that the headlights of the truck and other lights on it, and the trailer, were burning brightly when the collision occurred. The testimony is not conclusive as to how far the truck extended out into the street at the time it was rammed by plaintiff’s car. The force of the impact drove the truck two or three feet farther into the street than it was before being rammed.. At all events, we are certain'there was ample room for cars going westerly to pass the truck and still be on the north half of the street; in fact, some cars had done this immediately prior to the accident.

Rain was falling when the collision occurred and b«came heavier thereafter. The situs of the accident and the area surrounding it, for considerable distance, were well lighted at the time.

Plaintiff testified that he was not driving more than thirty-five miles per hour. Other testimony in the case appears to confirm what he says on the" subject. He and his young' woman companion both testified that neither was under the influence of liquor, although each admitted that since the hour of 12:30 A.M., they had imbibed of strong liquor to the extent of four drinks each. They had been to two night clubs, six miles apart, and were returning to the first one they had patronized that morning, when the accident occurred.

We feel warranted in agreeing with defendant’s .charge that, at least, plaintiff’s thinking and powers of observation were foggy.

Plaintiff’s own testimony is all that need be considered to hold that the accident was attributable _to his gross negligence. He says he could not see the truck on account of the rain. He did not testify that his vision to any extent was affected by the lights of cars going easterly, as by him alleged. He and his companion testified that they did not see the truck or trailer until when very close to them. This is doubtless true, and for a reason the record does not clearly reveal. It was his duty to have seen the lights and if he had seen them he would have known that they were affixed to some vehicle in his lane of travel. Plaintiff testified unequivocably that he did not see the truck until his car was within ten or fifteen feet of it. He also admitted he could not stop his car within either distance when making a speed of thirty-five miles per hour. He admits he was going at this speed.

Regardless of the reason for plaintiff not seeing the truck in time to have averted the collision, whether from the rain, oncoming lights, inattention, foggy mentality or for any other reason, he must be held responsible for its consequences. Really there existed no valid excuse or reason for him not seeing the truck’s bright headlights in sufficient time to go around it to his left. He says the headlights on his own car were fuctioning normally. Evidently, they would have revealed to him the presence of the truck had he been on the alert and surely conditions then prevailing made it imperative that he be on the alert. However, even without his own lights, the truck’s position was clearly disclosed by its own lights and the street lights that illuminated the locus. The absence of flares is unimportant, since plaintiff did not see the truck’s headlights, surely he would not have seen a flare had there been one in front of the truck.

The principle of law that holds responsible for the results of a collision the motorist who drives into a parked car or other stationary object on a highway or street, is so well established in this state it would appear superfluous to cite cases wherein it has been applied, but we do so.

The question above referred to was treated at length and maturely considered by this court in the case of Hogue v. Akin Truck Line et al., reported in 16 So.2d 366, 368. Many cases enforcing the principle are therein cited, and those cases constituting exceptions to the rule are also cited and discussed. The facts of the present case clearly remove it from the realm covered by the exceptions. In the Akin case, in consonance with a long line of decisions of this and other appellate courts, and of the Supreme Court of this state, we said:

“It has been repeatedly held that when visibility is materially impaired because of smoke, mist, dust, etc., a motorist should reduce his rate of speed to such extent and keep his car under such control as to reduce to a minimum the possibility of accident from collision; and as an extreme measure of safety, it is his duty, when visibility ahead is not possible or greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. Locke v. Shreveport Laundries, Inc., supra [18 La.App. 169, 137 So. 645].
“Because the night was dark does not excuse plaintiff for running into the truck; and we do not think that because visibility was poor on account of the named atmospheric conditions, he should be absolved from fault as a cause of the accident. The function of bright lights on an automobile is to illumine the surface of the highway ahead so that the presence of dangers to traffic may be revealed in time to avert an accident. It is the driver’s duty at all times, especially under conditions as alleged by plaintiff, to be on the alert; to steadily watch road conditions ahead of him, as they are revealed foot by foot, and to keep his car under such control and maintain such speed as is commensurate with conditions and circumstances. The greater the known hazards the greater should be the degree of care exercised.”

This enunciation of the law applicable to the facts of the Akin case fits the present case perfectly, and, of course, is decisive of it.

Defendant is entitled to recover on its reconventional demand even though it be conceded, arguendo, that parking the truck at the time and place and in the manner as was done, amounted to negligence because it is obvious plaintiff had the last clear chance to avert the collision. The fact that he failed to see this large immobilized truck until too close to avoid running into it does not excuse him. By the exercise of ordinary care and attention, its presence would have been discovered by him in ample time to avoid colliding with it,, and this is sufficient to render applicable the doctrine of the last clear chance.

A motorist is held to have timely seen that which it was possible, by the exercise of that degree of care and attention conditions about them demanded, he could have seen. Plaintiff’s car lights were seen by others then near the store and truck, several seconds before the collision.

It is argued that plaintiff was suddenly confronted with an emergency and that if he erroneously acted he should be excused from the harmful injuries that. followed. The rule invoked finds no application here because the emergency was born of plaintiff’s lack of care. It was of his own creation.

Therefore, for the reasons herein assigned, the judgment appealed from is affirmed with costs.

KENNON, J., absent.