text:
    AKIN v. BARRAS.
    No. 3064.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Davidson & Davidson, of Lafayette, for appellant.
    Voorhies & Labbe, of Lafayette, for ap-pellee.
   ELLIS, Judge.

This is a suit by A. F. Akin, d/b/a Akin Truck Line, against Preston J. Barras, d/b/a Barras Transfer Line, in which Akin, plaintiff, is seeking the recovery of $152.75 which represents the value of certain merchandise which plaintiff alleged was delivered to defendant but never delivered by the defendant to Louis Wormser, Franklin, Louisiana, the consignee.

Plaintiff alleged that he was a resident of Caddo Parish and was the owner of and doing business under the trade name of Akin Truck Line and, as such, was engaged in the business of transporting freight over various routes including one from Fort Worth, Texas to New Orleans, Louisiana, and that Preston J. Barras was a resident of the Parish of Lafayette, Louisiana, and was engaged in the business of trucking freight as a common carrier under the trade name Barras Transfer Line. It is alleged that on June 3, 1943, petitioner received from Williamson-Dickie Manufacturing Company of Fort Worth, Texas as the consignor, one carton of merchandise containing men’s cotton work clothing and consigned to Louis Wormser of Franklin, Louisiana as the consignee, and that plaintiff, upon receiving this merchandise, transported it to New Orleans, Louisiana, and delivered it to the Barras Transfer Line there for final delivery to the consignee at Franklin, Louisiana Plaintiff alleged that the delivery of these goods to the Barras Transfer Line in New Orleans is evidenced by original signed copy of way bill No. 6500, duly signed by Barras Transfer Line and which plaintiff has made a part of and annexed to this petition. Plaintiff further alleged that this merchandise was never delivered by the defendant and that as a result of its failure to deliver said merchandise, a claim was signed by Williamson-Dickie Manufacturing Company, the con-signer, for the failure thereof in the sum of $152.75, which plaintiff paid to the consignor. Plaintiff, therefore, in this suit prays for judgment for this amount against the defendant, Preston J. Barras, d/b/a Barras Transfer Line for the loss of and failure to deliver said goods to the consignee.

Preston J. Barras, d/b/a Barras Transfer Line, the defendant herein, filed answer which was a general denial of the allegations of plaintiff’s petition and, although admitting that the bill of lading No. 6500 was duly signed by the agent of the Barras Transfer line, “A. Fremin,” further set up in the answer that the signature of this agent of the defendant on the way bill or delivery receipt Number 6500 which is attached to plaintiff’s petition was secured through the misrepresentation of the agent or representative of the Akin Truck Line in the City of New Orleans; that the shipment of merchandise involved in this case was never delivered by Akin Truck Line to the Barras Transfer Line; that on account of the failure of the Akin Truck Line to deliver the merchandise covered by the way bill or delivery receipt Joe Dronet, who is the agent of the defendant in New Orleans, refused to sign this receipt when presented to him for his signature and that sometime thereafter the same agent of the Akin Truck Line, in the absence of Joe Dronet from defendants’ New Orleans office, presented this delivery receipt or way bill to Mrs. A, Fremin, who was a clerk in the defendant’s New Orleans Office, and told her at the time that Joe Dronet had checked this shipment and sent him, plaintiff’s agent, to her (Mrs. Fremin) to have the freight bill signed. Defendant further answered that the shipment had not been received and had not been checked by Joe Dronet, and that Joe Dronet did not tell the agent of the Akin Truck Line to have Mrs. Fremin sign the way bill or receipt, and that, accordingly, the statement of the agent of the Akin Truck Line was false, deceptive and fraudulent and, therefore, the signature of Mrs. A. Fremin, defendant’s clerk in New Orleans, was obtained through such “false representation and pretenses of plaintiff’s agent and has no binding affect on the defendant,”

The case was duly tried and the Judge of Lower Court rendered judgment in favor of the defendant and against the plaintiff, dismissing plaintiff’s suit at its cost and plaintiff has appealed from this adverse judgment.

It is undisputed that the Akin Truck Line received from Williamson-Dickie Manufacturing Company of Fort Worth, Texas, a carton of merchandise containing men’s work clothes consigned to Louis Wormser at Franklin, Louisiana, which goods were hauled - to New Orleans, Louisiana. The plaintiff transfer line and the defendant transfer line at that time used the same warehouse or terminal in New Orleans, and the place where the freight was loaded and unloaded in New Orleans was referred to as a dock and it was jointly used by both companies, in other words, both companies would unload freight in New Orleans on a common dock and any freight that was to be delivered to either company would simply be transferred to that particular company’s side of the dock. There were no partitions between the part of the dock used by Akin Truck Line and the part used by Barras Transfer Line.

The signature of A. Fremin, who was the clerk of the defendant company, on the way bill or delivery receipt No-. 6500 is admitted. There is no dispute 'that the plaintiff has paid to the consignor, Williamson-Dickie Manufacturing Company, $152.75, the full value of the canton of merchandise.

Plaintiff testified that he was the owner of Akin Truck Line which had received the carton of merchandise consigned to Louis Wormser in Franklin, Louisiana, and he identified the delivery receipt annexed to plaintiff’s petition, numbered 6500 and testified that it was the delivery receipt that his line would get when it delivered a shipment to an adjoining carrier for final delivery and that this receipt showed that Mrs. A. Fremin had received this shipment for Barras Transfer Line; that when the goods were not delivered to the consignee in Franklin, Louisiana, his agent, a Mr. J. L. McCoy, contacted the defendant truck line but that they did nothing about it and he was forced to pay the value of the goods to the consignor which he did by check, which check is introduced in evidence. Plaintiff testified that it was nothing unusual for Mrs. Fremin as agent for the Barras Transfer Line to sign these way bills or delivery receipts, acknowledging delivery of freight to the Barras Transfer Line. Plaintiff has introduced six such delivery receipts signed “Delivery Receipt-Received in good order and condition By Barras Transfer, Consignee-A. Fremin.” Plaintiff also testified that at.no time had there ever been any complaint or question as to her authority to sign these delivery receipts, as it was necessary for Joe Dro-net, who was employed by the defendant truck line to check inbound and outbound freight that came to the dock to be out “on the pick up and soliciting business.” Plaintiff stated that he had picked out at random from his files the six delivery receipts produced in evidence and he had others in his files at Shreveport which showed the custom of Mrs. Fremin to sign for these shipments.

Plaintiff testified that prior to the claim having been formally filed that the defendant truck line told him, “Well, we .will get your delivery receipt on that and after a short while prove delivery,” but that after the final formal claim was filed they said they did not receive the goods. The defendant had introduced two letters written by the plaintiff company to T. S. C. Motor Line and Herrin Motor Line in which letters the plaintiff notified these companies that this carton of merchandise was checked short on their New Orleans dock and, as his line very often interlined freight with these companies, plaintiff thought that pos■sibly this carton might have been left on their dock by mistake and asked them to check their dock very carefully for this carton. Plaintiff’s explanation of these letters is to the effect that after the defendant truck line could not prove delivery or finid any record of where they had delivered the shipment “they asked us would we please help them check docks where our trucks went to see if we could recognize the shipment or help them find same. It is the custom with all truck lines to help one another to keep' down claims and to see that merchandise reaches the consignee, and we put out some form letters trying to assist them in this case. I may add that at about the same time I had asked Mr. Dronet to look up and down his line docks to see if there was any stray freight that might belong to me.”

On cross examination, plaintiff testified that his record showed that he physically handled the shipment covered by this way bill and delivery receipt Number 6500 when it arrived in Shreveport, Louisiana, on its route to New Orleans, however, that he did not remember each instance but that he did have such a permanent record as would show whether or not he personally handled the shipment. Plaintiff further positively testified that his record shows that he checked out this shipment in Shreveport and it was checked in by his agent in New Orleans and signed for by him and shows it was received along with the freight bills and freight shipped in New Orleans.

Plaintiff has also offered the testimony of J. L. McCoy who was employed by the plaintiff truck line at New Orleans on the date that this carton of merchandise is alleged to have been delivered to the defendant truck line. McCoy testified that he was the agent for the plaintiff truck line in New Orleans and had charge of all inbound and outbound freight &nd checked the freight that moved directly across the dock of the plaintiff truck line, and that he had handled the carton of merchandise in question and had personally put it on the side of the dock belonging to or used by Barras Transfer Line, and that after putting this merchandise on the defendant truck line side of the dock he presented the bill to Mrs. Fremin for her signature. In answer to an interrogatory which was propounded to McCoy and in which he was asked whether Mrs. Fremin checked to see whether the merchandise was transferred ordf he had personally checked the transfer of the merchandise, he answered: “I had personally checked it myself.” He was further interrogated as follows:

“Are you in a position to swear positively that the merchandise referred to in the way-bill number 6500, photostatic copy attached to this interrogatory was actually delivered by Akin Truck Line into the possession of the representatives of Barras Transfer Line? Please state whether you are testifying from your own personal knowledge.”

To this, McCoy answered:

“Yes, it was, and I am testifying from my own personal knowledge.”

McCoy testified there was a lot of other freight on the dock that day belonging to both companies and that he did not pay any more particular attention to this one carton of Merchandise after it was delivered to the defendant truck line but that it was customary for Mrs. Fremin to sign the delivery receipts as she had done in this case; that this shipment was delivered the same as any number of other shipments of a similar nature. McCoy stated that he had written the letters to the T. S. C. Motor Line and Herrin Motor Line and had given them to Mrs. Fremin “as evidence of the fact that I had written the connecting lines with which we sometimes interlined freight in an effort to help them locate the merchandise.”

The defendant Barras testified that he had personally investigated the entire matter and had discussed it with his employee Dronet and with Mr. McCoy, employee of Akin Truck Line. Fie testified that McCoy, when he talked to him, “was very certain that he was holding a signature from A. Fremin, but he wasn’t certain of seeing the package or dragging the package across the dock.” McCoy also, at that time, offered to do anything he could to try to locate the missing package and, as a result, wrote the letters to Flerrin and T. S. C. truck lines in Alexandria and sent a carbon copy to the defendant Barras. This testimony by Barras is clearly corroborative of McCoy’s testimony as to the reason for writing letters to these 'ííther truck lines and would destroy the value of these letters as evidence against the plaintiff. Defendant testified that as far as he knew, the shipment in question was never delivered to his truck line in New Orleans or anywhere else. Of course, this knowledge was based upon what he was told by his employees, mainly. Barras also testified that they searched the docks package by package in order to try to locate this merchandise. Therefore, it would seem that the fact that the plaintiff truck line, in their effort to locate the package, wrote letters to other truck lines would be no more of an admission or evidence that they had not delivered the package to the defendant than the defendant, in searching the docks package by package, would be admitting that they received the package. This action on the part of both parties was merely an effort by each to locate the merchandise if possible. Barras testified that Mrs. Fremin did not have authority to sign receipts such as the one involved in this case, however, he admits that she did sign such receipts and that he recognized the validity of her action.

Joe G. Dronet testified that at the time that this carton of merchandise was supposed to have been delivered by the plaintiff truck line to the defendant truck line in New Orleans that he was employed to check inbound and outbound freight and also to receipt for same; that he spent most of his time on the dock and, on the day in question, he testified that he did not remember anything about the shipment from Williamson-Dickie Manufacturing Company to Louis Wormser which is involved in this suit except that he had seen the way bill but did not see the box, and on the same day that he was shown a way bill for Louis Wormser of Franklin, Louisiana, that there was also another way bill for J. J. Wormser, Jeanerette, Louisiana, and that this shipment was damaged and, as neither of them had a pencil on the dock, he told the agent of the plaintiff truck line to “ ‘go in the office and sign the damage on the bill,’ and he put his name on it and gave the bill to the girl and gave the wrong bill to the girl, Miss Freeman.” He testified that he did not receive from the Akin Truck Line the shipment involved in this suit and that he did not tell Mr. McCoy, agent of the plaintiff, to have Mrs. Fremin receipt for the shipment covered by way bill No. 6500. He testified that when he was shown way bill No. 6500, he asked where the freight was and that, as McCoy could not show him the box of merchandise, he would not sign the receipt, and that this was on the same occasion that the box consigned to J. J. Wormser by Williamson-Dickie came in and was damaged; that the two cartons of merchandise came in on the same truck. This witness also testified that J. L. McCoy wrote the letters introduced in. evidence to the other lines at the request of he and Mr. Barras. He also testified that Mrs. Fremin checked merchandise herself when he was not in. He testified that Mrs. Fre-min’s duties were running the office, typing the bills and, in case he was not there, she would sign for packages that would come in on the trucks. lie testified that Way .bill No. 6502 was for the damaged goods consigned to jeanerette, Louisiana, and that was the way bill which he told the agent of the plaintiff line to present to Mrs. Fremin, but, instead, the agent presented way bill No. 6500 for the goods consigned to Louis Wormser of Franklin, Louisiana. This witness also testified that after he saw way bill No. 6500 on the day that the merchandise came into New Orleans, that it was not until approximately three weeks later when Mr. Barras came to New Orleans in an effort to try to trace the lost package that he again saw it and saw that it was signed by Mrs, Fremin. In other words, he had not previously known that Mrs. Fremin had signed for this lost carton of goods. He could not swear “that Mrs. Freeman did not go out to check and sign that other package later on when you were not there.” He said that if she went to the dock, he did not know about it. Neither the defendant nor .any of his witnesses charge McCoy on any other occasion of being guilty of any fraud or of getting them “to sign something that wasn’t there.” This witness was a brother-in-law to the defendant Barras.

On cross examination this witness admitted that they had experienced some minor shortages in shipments during the time of the joint tenancy with Akin Truck Line, also that the back door of this joint warehouse could not be locked at all and that the dock was wide open and that after they would leave at night other people could get into the warehouse.

Mrs. Fremin testified for the defendant that her duties were office clerk — “Typing, answering the phone, making pick up costs and checking freight now and then when Mr. Joe Dronet wasn’t on the dock.” She admits her signature on way bill 6500 and states that she did not personally check the receipt of this shipment of goods., and further testified that “Mr. McCoy came into the office and said that Joe Dronet had authorized me to sign the bill, but it was this other bill in which the carton was damaged, but he presented me with this one instead.” On cross examination, Mrs. Fremin testified that she had on previous occasions signed receipts for freight on the statement of Mr. McCoy that the freight had been received and that she had no reason to doubt his word but that now and then, if it was a large shipment and Mr. Dronet was not on the dock, she would go check it. She testified that she signed this way bill 6500 because McCoy told her that Mr. Dronet said it was all right far her to sign it. Most of her testimony with regard to the alleged mix-up on way bill 6500 and the damaged carton of merchandise represented by way bill 6502 was obtained from information given her by Joe Dronet and was not within her own knowledge. She admits that she signed the six way bills offered in evidence by the plaintiff but could not remember whether she had personally checked any of them; that she had never, during the entire time she had known McCoy, had occasion or reason to doubt his truthfulness or veracity. This witness was a sister to the defendant, Barras.

As the Judge has given no written reasons, we do not know, for the record does not show, why he would disbelieve the testimony of the plaintiff and his witnesses and accept the statement of Dronet, witness for the defendant, that McCoy had substituted way bill 6500 for way bill 6502 and had fraudulently obtained the signature of Mrs. Fremin, authorized employee of the defendant truck line.

The testimony establishes the fact that this merchandise was hauled to New Orleans by the plaintiff track line, and McCoy testified positively that he personally put this package on defendant’s side of the dock, which was the customary method of dealing with these shipments, and that he obtained Mrs. Fremin’s signature on this way bill. The record shows that Mrs. Fre-min signed similar way bills without question and we cannot see any testimony which proves that McCoy fraudulently substituted this way bill for No. 6502. In view of the fact that Mrs. Fremin was in the habit of signing these way bills without any question and in view of the fact that the plaintiff testified and offered positive proof of the delivery of the goods in question, together with the signed way bill by an agent of the defendant company, admitting delivery of this particular carton of goods, and in view of the fact that the defendant company bore the burden of proof on its special defense that the signature on the delivery receipt No. 6500 was fraudulently obtained and that the testimony fails to convince us of this fact or to overcome the positive testimony introduced by the plaintiff it is therefore ordered that the judgment of the District Court be reversed and that there now be judgment in favor of the plaintiff and against the defendant in the full sum of $152.75 with legal interest from judicial demand until paid and for all costs.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    ALBRIGHT et al. v. TATUM et al.
    No. 3067.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.

      Davidson & Davidson, of Lafayette, and A. N. Simmons, Jr., of Napoleonville, for appellant.
    St. Clair Adams & Son, of New Orleans, and Aubert L. Talbot, of Napoleonville, for appellee.
   LE BLANC, Judge.

This suit results from a serious accident which took place during the early morning hours of November 24, Í945, in Assumption Parish, on Highway No. 90 at a point about 10 miles east of the Bayou Black bridge.

The plaintiff, Edward Lang Albright, was driving his 1941 Plymouth two-door Sedan, going west in the direction of Morgan City, when he ran into the rear end of a large truck and trailer, belonging to the defendant, James Samuel Tatum, which was heavily loaded with oil well mud.

As a result of the impact, Edward Lang Albright sustained personal injuries and the loss of his automobile which took fire and burned beyond repair, and his brother, Ger-ald D. Albright, his guest passenger, suffered the loss of his life, either in the accident itself or in the conflagration which took place afterwards.

This suit is brought jointly by Mrs. Frances Turner Albright, widow of Gerald D. Albright, in her own name and for and on behalf of her three minor children, Beverly Ann, Jerry Ann, and Mary Frances, issue of their marriage; Edward Lang Albright; the Employers Liability Assurance Corporation, Ltd., of London, England, and the Employers Fire Insurance Company. These plaintiffs all charge -the driver of the truck, who was in the employ of the owner, James Samuel Tatum, with the negligence which caused the accident. They implead as defendants, James Samuel Tatum, doing business as Jim Tatum Trucking Service, and Highway Insurance Underwriters of Austin, Texas, which carried the public liability insurance on the truck.

Negligence is charged against the driver, Chester A. Russell, in the following particulars: (1) In stopping the truck which was connected to the trailer with a coupling pole, on the highway, without leaving a 15 foot clearance on the paved portion of the highway; (2) in failing to set out flares as required by the law of Louisiana and particularly Act No. 164 of 1936, as amended by Act No. 215 of 1942; (3) in failing to have either side or rear lights lighted on -the truck and trailer at the time of the accident; (4) -in parking the truck and trailer in such manner that he knew or should have known that it would be difficult for traffic approaching from the rear to discern the object on the highway because of its color and composition, and (5) in failing to take any precaution whatever to warn traffic approaching from the rear of the danger that existed on the highway by reason of the said truck being parked there in the condition it was.

Mrs. Frances Turner Albright sues for $20,000 for herself, because of her loss caused by the death of her husband, and for $10,000 for each of her minor children. Edward Lang Albright sustained personal injuries, the principal one being a fracture of his right arm, and by reason thereof, incurred medical expenses and suffered loss of time from his work, for all of which he asks the sum of $5,000. The Employers Insurance Corporation, Ltd., was the compensation insurance carrier of Edward Lang Albright’s employer, Halpin Construction Company, Inc., and under its policy of insurance, had paid him up to the time of the filing of this suit, compensation at- the rate of $20 per week, or a total sum of $171.43, and in addition they also paid all of his medical and hospital expenses in the full amount of $353.40, for all of which it prays for judgment. It had also become obligated to pay compensation to Mrs. Frances Turner Albright, individually and on behalf of her minor children, plus the sum of $300 for funeral expenses which it also seeks to recover, both of its demands being asked to have precedence over the claims of the respective parties for whom it had become obligated to pay these amounts. The Employers Fire Insurance Company carried insurance on the automobile which was destroyed in the accident and had had the owner, Edward Lang Al-bright, assign his claim in the sum of $875, that being the amount of the loss, less $50 deductible under the policy, and it prays for a judgment against the defendants in that amount. The $50 deductible is included in the demand of Edward L. Al-bright making his total claim the sum of $5,050. Judgment is prayed for by all plaintiffs against the defendants, in solido.

Both defendants filed a joint answer in which virtually all the allegations relating to the manner in which the accident happened are denied and further answering they set out that when the truck reached the point on the highway indicated in plaintiff’s petition, the driver slowed down his speed, after dimming his lights, to approximately 10 to 15 miles per hour in order to meet a Greyhound bus which was approaching from the west. They aver that just after the bus met the truck, the driver felt a sudden jolt from the rear end of the trailer which caused him to stop immediately and that on getting out he found that the automobile had run into the left rear end of the trailer and the load of oil well mud, the right front end of the car having come in contact with the left rear end of the trailer. It is further averred that he was driving his truck on his right hand side of the paved slab of the highway, in a prudent and careful manner; that it was fully equipped with head-lights, tail lights, clearance lights, and that there was a tail light on the trailer, all of which were in good condition and properly operating at the time of the accident. It is further averred that when the automobile ran into the trailer it did so with such force that the sacks of mud on the trailer were knocked off and the shackles holding the spring on the rear of the trailer on the left side were bent and ■broken and the spring was knocked over against the dual wheels. All of this, it is urged, indicates the speed at which the Plymouth automobile was going at the moment and points to the negligence of the driver as being the sole and only cause of the accident. In the alternative :the defendants plead that if it be shown that there was any negligence on the part of the driver of the truck, the driver of the Plymouth was guilty of contributory negligence in the manner already set out which negligence is imputed to the deceased, Ger-ald D. Albright, his guest passenger, who should have observed the negligent manner of his driving and that as a consequence of said contributory negligence all plaintiffs are barred from recovery.

Judgment in the lower court was in favor of the plaintiffs as follows: In favor of Mrs. Frances Turner Albright, individually, in the sum of $14,000 and on behalf of her three minor children in the sum of $8,000 for each. This judgment is rendered against both defendants, in solido, but is limited, as against the defendant Highway Insurance Underwriters, to the sum of $25,-000, that being the extent of that defendant’s liability under its policy of insurance. In favor of Edward Lang Albright in the sum of $2,403.40, against both defendants, in solido. In favor of Employers Liability Assurance Corporation, Ltd., for the amount of compensation paid by it to Mrs. Frances Turner Albright, individually and for and on behalf of her minor children to the date of the rendition of the judgment, plus the sum of $300 paid by it for funeral expenses of Gerald D. Albright. That judgment is against both defendants in solido and it also relieves the Employers Liability Assurance Corporation for compensation to her and her three minor children, in so far as the excess of the judgment in her favor for herself and her children, is sufficient to satisfy further compensation due, computed at 6% per annum. In favor of the Employers Liability Assurance Corporation, Ltd., for the amount of compensation paid by it to Edward L. Albright in the sum of $171.43 plus the amount of $353.40 paid by it for medical and hospital expenses, this judgment being against both defendants in solido and to be paid by preference out of the judgment rendered in favor of Edward Lang Albright. In favor of Employers Fire Insurance Company in the sum of $875 against both defendants in solido. All judgments, except those which specifically decreed otherwise, were to bear interest at the -legal rate until paid and the defendants were taxed with all costs. Both defendants have taken a devolutive appeal. An answer to the appeal was filed on behalf of Mrs. Frances Turner Albright, individually and for her minor children asking for an increase in the amount awarded from the sum of $14,000 to the sum of $20,000 for herself and from the sum of $8,000 to the sum of $12,000 for each of her children.

As must be noted from the statement of the pleadings and the principal issues in the suit, mostly questions of fact are presented. If there is any law involved it is so closely connected with the facts that they both can be discussed together.

As we view it, there are four propositions to be considered in the case:. First, that which relates to the negligence of the driver of the Tatum truck; second, that which relates to the contributory negligence of the driver of the Albright car; third, that which relates to the imputation of his contributory negligence, if any, to Gerald D. Albright, the guest passenger in the car, and fourth, that which relates to the amount of the damages to be awarded in case of liability, if any.

We think it is important in considering the question of the negligence of the driver of the truck, to observe the composition of the equipment he was in charge of at the time of the accident. It is described rather minutely in the testimony in the case and there are photographs in the record which gives a good idea of its composition. It is important for us to consider this for two reasons: First, it seems that the clearance and tail lights are attached to this vehicle in such a way, that it becomes an important question when we come to decide whether the clearance and tail lights were burning at the time of the impact; secondly, the appearance of the rear end of the vehicle may be important when we consider whether the driver of the Plymouth automobile had difficulty in seeing its outline on the highway before running into it.

The equipment consisted of two separate units attached together by a coupling pole. This pole was a piece of 4 or 4% inch oil pipe. The front unit is the tractor part which pulled the rear end, called the trailer. Its overall length is not stated, but from the photographs we would judge that it was a rather long and bulky affair when the two units were assembled together. Its length, however, is not as important as its width, for in considering the amount of the surface of the highway it covered, that may have some bearing on the question of the negligence of the driver. There are no definite measurements given of its width but there is testimony that from the outside of one of the rear dual wheels to the outside of the other, it covered the entire lane of travel which it occupied with the exception of possibly six inches on each side. The trailer had a flat surface on which lay part of the 100 sacks of oil well mud. The other part was loaded on the tractor and it was all covered with a tarpaulin. These sacks of oil mud weighed one hundred pounds each.

This loaded equipment left Harvey, Louisiana, on the morning of the accident at about 2 or 2:30 o’clock. The driver is positive in his testimony that he examined the whole load before he left and is sure that all clearance and tail lights were burning at the time. A witness by the name of Thomas A. Mayers, superintendent in charge of defendant Tatum’s business, testified that this truck and trailer were in perfect working condition at the time; that it had recently been painted a bright red color and all equipment had been properly tested. We might then assume that at the time the load left Harvey, the lights were burning properly.

It is shown, however, that on equipment of this kind there are permanent clearance and tail lights only on the tractor and the clearance and tail lights on the trailer end of the equipment are accessory. They consist of a string of lights attached to' the trailer by means of large rubber bands. It is to this string that the 'tail light of the trailer was also attached. The current to this string of lights is supplied from the system furnishing the permanent lights on the tractor by means of a plug-in and socket arrangement.

The driver Russell says that he drove on as far as Thibodaux and stopped there to have a cup of coffee. He says that before entering his cab upon leaving Thibodaux he again examined his lights and found them all burning. He then proceeded on and drove as far as the place where the accident occurred. A seriously disputed question is whether or not his truck was stopped on the highway when it was run into or whether it was still in motion. The other seriously disputed point is whether or not the clearance and tail lights on the trailer were burning at the moment.

Russell testifies that he was driving about 35 miles per hour and that he slowed down at the time to a speed of about 10 miles per hour in order to light a cigarette. At this moment he observed a vehicle approaching him from the west, about one mile distant. That vehicle gave him its dimmers and he responded by giving his. In order to meet this approaching vehicle safely, he says that he put his cigarette down in order to put both hands on his steering wheel and as he did so he heard a crash into the rear end of the trailer of his truck whereupon he stopped it within a very few feet. Another reason he gives for slowing down his speed was because he was nearing his destination.

The testimony offered on behalf of the plaintiffs on this point is that of the plaintiff Edward Lang Albright, who says that he is positive that the truck was not in motion. The first thing he observed after he emerged from the light of the vehicle which Russell had observed coming from the west, was the dual wheels on the trailer and he is positive that they were not turning. The other testimony offered by them is that of the driver of the vehicle coming from the west which turned out to be a Greyhound bus. The driver was a man by the name of Richard, known as “Frenchy.’' His testimony is that about one mile distant, he observed the lights of the truck on the highway and saw that its head-lights were shining brightly. He blinked the lights of his bus and received no response, he blinked his several times again. Still receiving no answer, it occurred to him that there might have been an accident on the road so he slowed down. On nearing the truck he saw that there was no accident but in taking in the scene he says he looked into the cab of the truck and saw no one in it. Obviously then the truck was stopped.

We believe that the testimony of the plaintiffs prevails over that of the defendants on this important point in the case. It is unusual, we believe, for the driver of a truck to take the precaution this driver says he did by slowing down in order to light a cigarette, and then on seeing a vehicle approaching him, put the cigarette on the seat in order to make use of both of his hands on the steering wheel. The other reason he gives for having slowed his speed does not impress us as being a straight forward story because he must have known that at this place on the highway, he was nowhere near his destination which was New Iberia, Louisiana. Another circumstance to be considered is that the truck did not move very far if the impact was as strong as he says it was, for a vehicle that was in motion. It may be that Albright, in the excitement of the moment might not have been so positive as he says he was in observing that the truck was not moving, but there is no reason why the testimony of Richard, the bus driver, should not be given credence on this point. It.would seem to be a reasonable thing for bus drivers, especially one with twenty-seven years experience such as he had, to have observed the things he said he observed. When he saw the bright lights of this truck on the highway and called for its dimmers and did not get them, the normal thing for him to do was to continue blinking his lights in order to have an answer from the other vehicle. That he got nO‘ answer impresses us with the idea that there was no one in the track to give an answer. It seems also to have been a reasonable thing, because of the situation that existed, for him to expect that there may be trouble on the highway and more naturally for him to have slowed down to observe it, as he says he did, and this could very well have included his'. looking into the cab of the truck to see if the driver was in it or not.

We conclude therefore that the preponderance of the testimony shows that the truck was at a complete stop and was parked entirely on its right hand lane of travel on the paved portion of the highway, and we will next discuss the other important point relating to negligence concerning the lights on the rear end and on the side of the trailer and whether they were burning or not.

Although Russell says that he examined the lights before leaving Thibodaux and is positive that they were burning, he admits that because of the manner in which they were connected by means of a socket to the permanent lights on the tractor, it is possible for them to become loosened when the truck and trailer turned a sharp curve on the highway. He testified that there were two or three such curves between Thibodaux and the place where the accident occurred. Mayers, defendant Tatum’s foreman in charge of equipment, not only admitted the possibility of the trailer lights pulling loose from their connection with the permanent lights on the tractor but says he knows of instances where that happened.

Albright, the driver of the car, is positive that there were no lights burning on the trailer, at the time he ran into it. He says that he was in a position to see if there were any and states that he could have even seen a cigarette burning had there been one on the tail end of the trailer. Some witnesses who appeared at the scene of the accident after it was over said that they saw a string, which evidently was the string of lights attached to the trailer lying on the highway, but this was after the accident and presents no proof as to whether or not the lights were off or were burning at the moment of the impact. The testimony does prompt the thought however that if there was a string on the highway after the accident that they may not have been attached as firmly as the witness, Mayers, testified that he had attached them himself with a rubber band, says they were. Richard, the driver of the bus testified that there were no clearance lights on the truck and trailer as he approached and met it. Naturally he could not see if there was a tail light but in as much as the tail light and clearance lights were connected on the same string, it follows that if the clearance lights were not burning, the tail lights could not have been burning either. ■

It is on this point, apparently, that the trial judge formed his conclusion regarding the negligence of the truck driver, Russell. He showed himself by his testimony in this regard to be unworthy of belief. He testified that after leaving Thibodaux he kept an almost constant watchout for the clearance lights by looking for them through the rear-view mirror attached to the driver’s side of the truck cab. He says that by looking in the mirror frequently, he observed that they were burning at all times. When confronted with the fact, as shown by a photograph taken of the truck at the scene of the accident during that same morning, that there was no rear-view mirror in the bracket attached to it, he broke down and tried to change his story by saying at first that he thought there was a mirror but then changed his testimony by saying that he kept tab on the lights by looking out through the window of his ’ cab. When asked pointedly whether he wanted the court to believe that testimony or not he frankly stated that he did not. We agree with the trial judge that his testimony is worthy of very little consideration if he was no more careful with the truth on any other point than on this one.

We cannot say, therefore, that the trial judge manifestly erred in his conclusion on this charge of negligence against the defendant truck owner, any more than he did on the other as to whether the truck was stationary or not and agree with him that the plaintiffs have shown such negligence as would entitle them to recover unless they be barred by some negligence on the part of the driver of the Plymouth automobile, which negligence could also be imputed to his guest passenger.

We think that the contributory negligence which is charged against the driver of the car presents perhaps the closest issue to decide in the case. However, we feel satisfied that even though it be shown that he was contributorily negligent in some manner there is no basis on which to attribute any of his negligence to his fellow passenger.

We will not take up any time discussing the law with respect to the contributory negligence of the driver of an automobile under circumstances such as we have in this case as that law has been considered over and over again in cases of this kind. It is safe to say now, in view of the more recent decisions of the Supreme Court, and the decisions of this Court, that whether a driver who runs into the rear end of an unguarded truck or automobile, parked on the highway, during the night time, is guilty of negligence or not is a question which can only be decided on the particular facts in each particular case. One of the important facts to be considered is the bodily make-up of the vehicle which he runs into. A vehicle which presents a broad surface which should be readily discernible by means of his own head-lights for a distance of some 200 feet in front of him, such as the law provides his lights should project, presents a different situation than a vehicle whose rear end does not offer that kind of surface, but which on the contrary,, offers to his view only a flat surface such as a platform. Much is said about the load of oil well mud on the trailer which formed a back ground surface for Albright to have observed in this case. In this connection, it is important to note that besides the back ground surface of the vehicle, its color and its reflection to light may also play a significant part. We may well assume in this case that this load presented a surface large enough for a driver approaching it to see and still the testimony is to the effect that it was covered with a tarpaulin, which admittedly, is the same kind of tarpaulin that was used on trucks during the late war to camouflage them and make it difficult for them to be seen.

Another important factor is one which has sometimes been referred to in cases of this kind to show the emergency which confronted the driver of the approaching vehicle and which malees it difficult, if not impossible, for him to see the parked vehicle. We refer to the fact that the driver in this case was confronted with the lights of the Greyhound bus which was approaching him from the opposite direction. He does not state that he was blinded by those lights but does testify that as his car emerged from meeting with that bus, he was about 30 feet from the truck 'and it suddenly loomed in front of him without any chance of his avoiding running into it.

It may be that so far, there isn’t anything to show that he was guilty of contributory negligence, but when we come to consider the question of the speed at which he was going and what efforts he made to keep his car under control when he saw the Greyhound bus approaching him with its blinking lights, that is a matter which gives us very much more concern. He says that he slowed down his speed to about thirty-five miles per hour. He states that he was “searching” the road and that he then saw another vehicle following the bus at about a half or three quarters of a mile and that was all he could see. As he cleared the lights of the bus, he was right on the truck and couldn’t avoid running into it. A speed of thirty-five miles isn’t unreasonable when meeting a vehicle under ordinary circumstances but here, the driver of the car faced a situation that was a bit out of the ordinary. As the bus approached him he says that it blinked its lights about ten times and he found it necessary to “search” for the road. He then saw this other vehicle following the bus and that was all that he could see. Even then, however, he maintained his speed of thirty-five miles. Under the circumstances, he was called on to exercise a bit more prudence by slowing down to the point where, in his search of the road, he could make sure that all was clear ahead of him.

But considering the force with which he struck the trailer or the truck and the results of the impact, we can’t believe that he was driving as slowly as he says he was. The axle and spring on this heavily loaded trailer were knocked forward of the frame on the left side and the four inch pipe coupling rod was completely broken in two. Tb,e front end of the Plymouth car was entirely demolished and the body covered with bags of the oil mud thrown off the load by the force of the blow. In the recent case of Ledoux v. Beyt, La.App., 35 So.2d 472, we held that results somewhat similar from the force of an impact when an automobile ran into the rear end of a cane truck presented sufficient evidence to indicate negligence on the part of the driver of the car and we feel constrained to hold the same in this case.

We do not think however that the negligence of the driver can be imputed to his guest passenger. This court has consistently held that a guest riding in an automobile has the right to rely to' a reasonable extent on the care and proper operation of the car by the driver. He is not called on to be on the same alert and to have seen what the driver should have seen. It is only where there is danger so apparent that he, as well as the driver, should have seen it, that he becomes negligent also if he fails to give warning or to protest if the driver's negligence continues. There was no such danger which became apparent to the guest in this case. Conceding that he saw the blinking lights of the Greyhound bus as it approached them, that was no indication of immediate danger to him. It may well have caused the driver to “search” for the road, as he says he did, but there was nothing to suggest any apprehension to the guest. The same degree of vigilance required of the one operating the car is not required of the guest. See Delaune v. Breaux, 18 La.App. 609, 135 So. 253, affirmed by the Supreme Court, 174 La. 43, 139 So. 753. Our conclusion therefore is that whilst Edward Lang Albright, the driver of the Plymouth car and his compensation and liability insurance carriers are barred from recovery because of his own contributory negligence, his negligence cannot be imputed to his guest passenger, the decedent, Gerald D. Al-bright, and the latter’s widow and children as well as his compensation insurance carrier were properly held entitled to judgment in the court below.

After careful consideration of all the facts concerning the measure of damages, we are of the opinion that the amount allowed Mrs. Gerald Albright is justified but find the sum of $24,000, the total allowed for her three minor children is excessive. We will reduce that amount from the sum of $8,000 for each to the sum of $5,000 for each child and in this respect the judgment will have to be amended.

For the reason stated it is ordered that the judgment appealed from, in so far as it decreed liability in favor of the plaintiff, Edward Lang Albright, his liability insurance carrier, Employers Fire Insurance Company and the compensation insurance carrier of his employer, Employers Liability Assurance Corporation, Ltd., of London, England, be and the same is hereby reversed, set aside and annulled, and it is further ordered that the demands of the said plaintiffs be rejected.

It is further ordered that the judgment in favor of Mrs. Gerald Albright in the sum of $8,000 for each of her three minor children be amended by reducing the same to the sum of $5,000 for each child and that as thus amended, the said judgment be affirmed. All costs of this appeal are to be paid by the plaintiffs, appellees herein.


author: DORE, Judge.

text:
    PERRODIN v. GARLAND et al.
    No. 3054.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Atlee P. Steckler, of Ville Platte, for appellant.
    Stafford & Pitts, of Alexandria, and E. Herman Guillory, of Ville Platte, for ap-pellees.
   DORE, Judge.

On the night of February 3rd, 1946, between the hours of 10:30 and 11:00 p. m., a half-ton Ford truck owned and being driven by Darius Ardoin, accompanied by Curtis Perrodin and Nathan B. Fontenot collided in the rear of a one-and-one-half ton log truck owned by R. G. Garland and being driven by his son, Haskell Garland, accompanied by the latter’s fiancée, Katherine Morein, in the front of the home of Dr. Arthur Vidrine on the Main Street of the Town of Ville Platte, in Evangeline Parish, Louisiana. As a result of the collision Curtis Perrodin received injuries from which he died, and Nathan B. Fontenot received serious injuries, which necessitated long hospital and medical treatment and from which he has apparently remained partially disabled. The driver of the half-ton truck received only mild bruises and cuts, and the driver of the 1^-ton truck, which was run into, received no injuries, but his companion, then his fiancée, whom he later married, was jolted and no doubt suffered from shock. As a result of this unfortunate accident, suit was filed by plaintiff, the widow of Curtis J. Perrodin, for herself individually, and on behalf of her three minor children, born of her marriage to the deceased, in which it is alleged that the accident was caused solely by the negligence of Haskell Garland, which suit was filed against the said Haskell Garland, as driver, and R. G. Garland, trading under the name of R. G. Garland Lumber Company, as owner of the log truck, and against the Traders & General Insurance Company, as insurer of R. G. Garland Lumber Company against liability to third persons for personal injury and property damages. The allegations of negligence are to the effect that the truck of the defendant herein was equipped with only a cab thereon and no body or trailer attached thereto; “that it had a large steel and wooden projection in the form of chassis sticking out for a distance of 10 or 15 feet from the rear of the cab and away from the wheels of said logging truck, without any reflector, lights, signs or warning signals of any kind or thereto attached; that because of the sudden stopping in said hig'hway on the part of defendant’s truck, and by virtue of an oncoming car giving out bright lights, visibility of the truck in which the plaintiff was riding was obstructed”; that in effect the unlighted truck was unseen until a moment too late to prevent the driver in the rear from colliding with it. The allegation is made that the sudden stopping of the truck in which the decedent was riding, on the part of the defendant’s truck, was gross and wanton negligence and the proximate and immediate cause of the injury, suffering and death of decedent Curtis J. Perrodin.

Another case was filed on behalf of Nathan B. Fontenot, in which claim is made for the personal injuries sustained by him and for damage resulting therefrom, including pain and suffering, disability and loss of income and based on the same allegations of negligence on the part of defendant’s trunk driver. 37 So.2d 901.

The defendants filed answer admitting that the accident had occurred but denying all the material allegations of the petition and alleging that the accident was caused solely by the negligence of the plaintiffs and the driver of the half-ton truck in colliding in the rear of the defendant’s lj^-ton truck, which was properly equipped with lights, including a tail light and head lights and which was travelling in the same direction as the rear truck, at a reasonable rate of speed. The answer further avers that Has-kell Garland, the driver of the Garland truck, as before stated, was driving in a safe and proper manner, with proper lights, on his right side of the highway and that the sole cause of the accident was the fact that Dallas Ardoin and his companions, Curtis J. Perrodin and Nathan B. Fontenot, were driving at a highly excessive rate of speed, in utter disregard of and in violation of the laws of the Town of Ville Platte, on its main street, in an intoxicated condition and without keeping a proper lookout. In the alternative, the defendants plead that if negligence on the part of Haskell Garland should be found, which is denied, then and in that event the plaintiffs herein should be found guilty of contributory negligence in that they both acquiesced in the driving of Darius Ardoin at an excessive rate of speed and while In a state of intoxication.

The two cases were consolidated for trial, since the evidence in both was the same, and after trial, the Court rendered judgment, supported by written reasons, dismissing both cases at the costs of plaintiffs. Plaintiffs have appealed.

The contentions of the plaintiffs in these consolidated cases are that Darius Ardoin, the driver of -the 1-ton pick-up truck was driving on the paved highway in an easterly direction out of the Town of Ville Platte, between the hours of 10:30 and 11:00 p. m., on February 3, 1946, accompanied by the deceased Curtis Perrodin, and Nathan Fon-tenot ; that they were driving on their right side of the road, at a reasonable rate of speed, and were going to visit some relatives of Darius Ardoin in the community of Plaisance, some eight miles to the east. Plaintiffs contend that they stopped on their way out of town at Thomas Reed’s filling station, approximately three blocks from the point of collision. They further contend that the evidence shows that they were travelling at a reasonable rate of speed and that just prior to the collision they encountered an oncoming car with bright lights coming from the opposite -direction just prior to arriving at the point where the defendants’ truck had come to a dead stop at the intersection of the main paved highway and a road which leads north to the Tate Cove- community and that the said truck, not being equipped with any reflectors or lights in its rear and without having given any signal of.gny kind, was unseen until too .late to avoid a rear end collision on the part of Darius Ardoin driving the half-ton truck.

It is clear, therefore, that -the plaintiffs rely entirely on'the alleged gross negligence of the defendants in- allowing an unlighted log truck to be driven on the main street of the town of Ville Platte, and on the negligence of the driver of said truck, Plaskell Garland, in stopping this unlighted log truck in the path of the oncoming half-ton truck of Darius' Ardoin without giving any warning signals whatsoever.

The defense contend that the evidence shows clearly that Haskell Garland was travelling, at the time of the impact, slowly and carefully, at a rate of speed of 15 to 25 miles per hour and that the truck had a tail light, clearance lights, and head lights as required by law, and that furthermore the accident occurred some 50 or 60 feet west of a street light, which clearly lighted up the area in which the collision occurred; that consequently the collision was caused solely by the gross negligence of Darius Ardoin in running into the truck at an excessive rate of speed and without keeping a proper lookout for traffic. The defendants further contend that there was no oncoming car with bright lights which in any way interfered with Darius Ardoin’s driving, and that further that he and his companions, the deceased Perrodin and plaintiff

Fontenot were in an intoxicated condition, on a pleasure trip, and driving' at an excessive rate of speed. Their main contention is that the accident was caused solely by the gross negligence of Darius Ardoin and that the evidence shows no negligence whatsoever on the part of Haskell Garland, the driver of the lj4-ton truck ahead, or on the part of any of the other defendants. In the alternative, the defendants contend that if any negligence could be found on the part of Haskell Garland, that undoubtedly the evidence shows beyond a doubt that Darius Ardoin and his companions were intoxicated, and that ■ Darius Ardoin, the driver of .the half ton truck was driving at a highly excessive rate of speed, with the full acquiescence of his companions, and that therefore the claims made herein are barred by contributory negligence.

In support of plaintiff’s contention that the accident was caused by the sole negligence of the defendants the evidence consists of the testimony of Darius Ardoin to the effect that when he struck the Garland truck, “it was standing still” and that the street lamp in question was not burning at the time of the accident, and moreover that he had not been drinking to any extent; having had one drink about an hour before the accident; that the truck did not have any tail lights or warning lights and had a protruding chassis of some 10 or IS feet; that immediately prior to arriving at the scene of impact an oncoming car, with glaring lights blinded him; that in spite thereof he veered to his left with the view of missing the object, being the truck, which had. stopped without warning or signals, but that, in effect, he was unable to prevent the collision with it.

Plaintiff Nathan B. Fontenot, testified very much to the same effect, and under cross-examination, denied that any one in the half-ton truck was intoxicated, although he did admit that prior to meeting Perrodin and Ardoin he had had a bottle of beer and that later he and his two companions had had a bottle of beer at- the Curve Inn bar some two miles west of the Town of •Ville Platte.

With reference to the presence of the street light and the condition of the occupants of the half ton truck, plaintiff called “Black” LaFleur and Eloi Soileau, two of the Ville Platte policemen. Both of these witnesses testified that Darius Ardoin, whom they saw shortly after the accident, at the scene thereof, did not appear to be drunk, but neither testified that he was sober. Their testimony on this point appears to be rather evasive. Officer LaFleur testified that the street light near the point of collision was burning. Officer Soileau apparently did not recall whether it was burning or not. Both of these officers testified that they examined the Garland truck after the collision and that it had no tail lights or reflector, but they both admitted, in effect, that they did not examine the damage to the truck by the collision and could not testify as to the condition of the lights prior to the collision.

On behalf- of plaintiff, the wives of the deceased Curtis Perrodin and Darius Ar-doin testified that Darius and Curtis were with them two or -three hours prior to the accident and that at that time they were perfectly sober and in good condition. Their testimony does not have great weight, for the reason that the accident occurred some two or three hours after they were last seen by them.

Allen Lemoine, manager of the Light Company, called by plaintiff, testified mainly with reference to the street lights, and his testimony has little weight, for the reason that the street light in question was not seen by him on the night of the accident, but he did testify that the light was the same as other lights in the town and contained a bulb of 143 watts.

Thomas Reed, called by plaintiff, testified that a few minutes before the accident, Darius Ardoin stopped at his filling station for gas, and that he was accompanied by Fontenot, Perrodin and a fourth man, Anzy Pitre; that Pitre seemed to be drinking, and that Fontenot was drunk in the car; that he did not think that the other two, Darius Ardoin and Curtis Perrodin, were drunk.

The defence relied' principally on the testimony of Haskell Garland, a young man of 25 years of age, the driver of the Garland truck, and Miss Katherine Morein, his companion, to whom he was later married. These witnesses testified positively and without any hesitancy that they had been to the Platte Theater, some four or five blocks west of the point of the collision, on Main Street; that they drove to the American Inn, where they had a sandwich; that thereafter travelling in the 1^4-ton truck, they were proceeding east on the Main Street of Ville Platte, driving at about IS to 25 miles per hour, going towards Opelousas, and that when they arrived at a point some 60 feet west of the Tate Cove road they were struck from behind by the Ardoin half-ton truck with a terrific blow and were pushed s.ome'20 feet from the point of impact, and in a southerly direction across the south ditch of Main Street, into the fence of Mrs. J. E. Vidrine, some few feet west of the street lamp, which is located ait the northwestern intersection of the Main Street and the Tate Cove road. These witnesses testified positively that the lights on the truck were in perfect condition; that they were merely travelling in the truck for the sake of riding, as two lovers will, and at a reasonable rate of speed at about IS to 25 miles per hour; that they had no particular destination, but were travelling east towards Opelousas with no intention of turning at the Tate Cove road, and that no stop was ever made. They positively deny that any oncoming car with bright lights appeared just before the accident, and they both positively testify that the street lamp was burning, and that they had no reason whatsoever to anticipate a rear-end collision. They testified further that after the accident they talked to Darius Ardoin, and that he was intoxicated, and that they examined the half-ton truck and that the inside thereof smelled strongly of intoxicating beverage. Their testimony is to the effect that from the blow which they sustained in the rear of their truck, and the extent to which they were pushed, and the further fact that the truck which collided with them continued for a distance of about SO feet, that it was undoubtedly travelling at a rapid rate of speed.

For the defendant, Lindsay Veillon testified that subsequent to the accident he observed the damage to the Ardoin and Garland trucks and he estimates from his experience that this damage shows that the Ardoin truck was travelling some 40 or 50 miles -per hour.when it struck the rear of the Garland truck.

Anzy Pitre testified for the defendant. He stated that he met Darius Ardoin and Fontenot at the Buckhorn Saloon some time prior to the accident; that Perrodin had a bottle of whiskey with him at the time, and that they all took a drink from this bottle; that all four of them then rode in the truck to Reed’s filling station, at which time Ardoin drove 40 to 45 miles per hour from the Buckhorn Bar to the filling station, which is a distance of some two blocks; that when they arrived at Reed’s filling station, all of them got out, except Fontenot, who was drunk and stayed in the pick' up truck; that after they got gas, Ardoin drove back to the Buckhorn Bar, travelling very fast; that he, Pitre, then got off at the Buckhorn, and that Ar-doin and his companions then left, driving in the direction of the Curve Inn, a bar some two miles west of Ville Platte.

Johnny Soileau testified that he was employed at the Curve Inn Bar as a Black Jack dealer, and that Ardoin, Fontenot and Perrodin came there and stayed from about 8:00 p. m., until 9:30 p. m.; that they played Black Jack and drank at the Black Jack table. He says they each had 3 or 4 or maybe 5 drinks.

Other witnesses in the case were Eldridge Vigé, Karl Sensenbrenrier, and Marshall Soileau, who happened at the scene of the accident shortly after its occurrence. Vigé stated that he tried to get Ardoin to talk to him about the accident, but that he could find out nothing from him. He testified further that the pick-up truck was full of vomit and smelled of whiskey; that the street light at the scene of the accident was burning. Karl Sensenbrenner testified that ■he talked to Ardoin when he arrived at the scene of the accident and asked him who was with him, and that Ardoin stated that he did not remember; that Ardoin’s speech was incoherent and that he had a thick tongue as if inebriated. Marshall Soileau stated that he talked to Ardoin and that in effect Ardoin did not seem to know what had happened and that he appeared to be drunk.

Archie Rollins, a young man of 17 years of age, testified, in effect, that he observed the pick-up truck driving just prior to the collision; that he was standing in front of the Platte' Theater on Main Street of Ville Platte some 4 or 5 blocks from the accident when it came by, that it was travelling at a very rapid rate of speed, and that shortly thereafter he heard a crash. The witness admits that he did not visit the scene of the accident, and his testimony is apparently offered to corroborate the defendant’s contention that the pick-up truck was trav-elling at a fast rate of speed.

Burnett Jeansonne testified that he is an employee of the Garland Lumber Company and that it is a practice of said lumber company to keep all trucks in good repair and equipped with lights, but admits that he was not present at the scene of the accident, but that he observed the tail light of the Garland truck burning properly earlier in the evening.

Shortly after the accident Dr. Arthur Vidrine and Father Bourgeois in front of whose, homes this accident occurred, appeared at the scene and assisted the deceased and the injured in their respective capacities as Doctor and Priest, and also assisted in removing the deceased and Fontenot on stretchers to Dr. Vidrine’s hospital located nearby. Neither of these witnesses, who arrived at the scene after the accident, was called by either plaintiff or defendant, and in their respective briefs both plaintiff and defendant make the point that their testimony would have been adverse one to the other. Of course, it was incumbent upon plaintiffs to prove their case, and the testimony of these two witnesses could have established at least the question as to whether or not Darius Ardoin and his companions were in a state of intoxication. However, it seems rather apparent that these witnesses were not called for the purpose of saving them embarrassment, in view of their high positions and for the reason that whatever testimony they would have given would have been merely cumulative of the testimony given by the other witnesses in the cases.

From the testimony, it is our conclusion that the plaintiffs have failed to show any negligence on the part of Haskell Garland or the other defendant. The preponderance of the evidence shows that the truck with which Darius Ardoin collided was properly equipped with lights, including a tail light underneath the chassis on the left side. This is well borne out by the photographs of the trucks introduced in evidence.

It is further shown by the preponderance of the evidence that Haskell Garland, while courting his sweetheart, was travelling at a reasonable rate of speed and on his right hand-side of the highway, and was acting normally in every manner. They had been to a picture show and had had sandwiches and partaken of no alcoholic drink and there is no evidence to show that they were not acting in a normal manner and not driving carefully just prior to the accident. The preponderance of the evidence also shows that the accident happened some 60 or 70 feet prior to arriving at the intersection of the Tate Cove road, which corroborates the testimony of Haskell Garland and Katherine Morein, to the effect that they were driving straight on and had no intention of turning at the time of the impact, and which shows that Darius Ardoin was mistaken in believing that the truck was stopped at the time of the collision.

Even if we could find any negligence on the part of Haskell Garland, the fact seems inescapable from the evidence that Darius Ardoin and his companions were at least guilty of contributory negligence. The preponderance of the evidence shows clearly that the three young men had been together for some two or three hours prior to the accident; that they had visited the Buckhorn Saloon and the Curve Inn bar; that they had partaken of alcoholic drink during ■ that time and that naturally they were all three under the influence thereof; that they were on a pleasure venture; that Darius Ardoin was driving at a fast rate of speed with the complete acquiescence, if not encouragement, of the deceased and Nathan Fontenot. This latter fact is fully demonstrated by the physical facts; the fact that the half-ton truck driven by Darius Ardoin struck the left rear of the Í1/2-ton truck of Garland with such force that it pushed it some 20 feet eastward, and then southerly .across a ditch, into a fence, and the Ardoin truck then continued some 50 feet easterly, and that the front of the half-ton truck and the rear of the li/^-ton log truck were completely crushed. The photographs introduced show clearly the damage done to both vehicles. Moreover, the impact of this smaller truck into this larger truck was so great that Miss Morein, who accompanied Garland, was thrown onto the floor board of the truck.

And, in so far as the lights on the truck are concerned, it is true that subsequently to the accident the evidence shows that they were not operating, but this was explained by the fact that the battery was knocked off, and necessarily none of the lights could have operated subsequent to the collision.

It is our conclusion that the accident was caused solely by the gross negligence of Darius Ardoin, and by no negligence on the part of the defendants; but that, in any event, the plaintiff Fontenot and the deceased, as companions of Darius Ardoin in aiding and abetting him in driving his half-ton truck in a manner and under the conditions set forth, were at least guilty of contributory negligence which bars recovery in each of these cases, resulting from this most unfortunate accident.

For these reasons, the judgment appealed from is affirmed.


text:
    Nathan B. FONTENOT v. TRADERS & GENERAL INSURANCE CO. et al.
    No. 3055.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 23, 1948.
    Atlee P. Stedder, of Valle Platte, for appellant.
    Stafford & Pitts,, of Alexandria, and E. Herman Guillory, of Ville Platte, for ap-pellees.
   DORE, Judge.

This case arises out of the same accident which gave rise to the suit of Mrs. Eunice Lafleur Perrodin v. R. G. Garland et als, and was consolidated for trial with the Perrodin case with the provision that separate decrees would be entered.

For the reasons assigned in the case of Perrodin v. Garland, La.App., 37 So.2d 896 it is ordered that the judgment appealed from be and the same is hereby affirmed.


author: SUNDBERG, Justice.

text:
    STATE of Florida, Appellant, v. Shallan M. SHAMRANI, Appellee. STATE of Florida, Appellant, v. John Paul CARTER, Appellee. STATE of Florida, Appellant, v. Anthony Edward BENNETT, Appellee. STATE of Florida, Appellant, v. Don Charles ABEL, Appellee.
    Nos. 53888, 54036, 54037 and 54066.
    Supreme Court of Florida.
    March 8, 1979.
    Rehearing Denied May 15, 1979.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, C. Marie King and Robert J. Landry, Asst. Attys. Gen., Tampa, for appellant.
    Philip J. Padovano, Tallahassee, for Shamrani.
    James W. Denhardt of Denhardt & And-ringa, St. Petersburg, for Carter.
    Robert E. Jagger, Public Defender and Steven H. Mezer, Asst. Public Defender, Clearwater, and Jack 0. Johnson, Public Defender, Bartow, for Bennett and Abel.
   SUNDBERG, Justice.

In these consolidated appeals from orders of the County Court for Pinellas County, Florida, the facial validity of section 827.-04(3), Florida Statutes (1977), is brought into question. Based upon the assertion in motions to dismiss that the statute is unconstitutionally vague and overbroad, the trial court held it invalid. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

It is conceded by the parties that the statute in its present form is substantially the same as its predecessor which together with section 828.19, Florida Statutes (1959), was upheld against an attack for vagueness in State v. Barone, 124 So.2d 490 (Fla.1960). We do not deem the change in the statutory language eliminating the work “manifestly” or adding the provisions concerning the lack of necessity for an adjudication of delinquency or dependency as being material to the constitutionality of the statute. State v. Barone was cited with approval in State v. Lindsay, 284 So.2d 377 (Fla.1973), where the 1971 version of section 828.19, Florida Statutes (1971), was assailed for vagueness and overbreadth. Finally, Bar-one and Lindsay were most recently cited with approval in Bell v. State, 289 So.2d 388 (Fla.1973), where section 828.21, Florida Statutes (1971), was once again found constitutional as against an assertion of vagueness.

It was stated in State v. Lindsay, 284 So.2d at 380:

The statute presently in question before this Court provides persons with notice of the prohibited acts and is not so broad that it would lead to arbitrary and erratic arrests and convictions. This statute does not purport to punish conduct which by modern standards would be considered innocent.

We are aware of no new wisdom acquired in the intervening five years which would make us conclude that what has heretofore been construed as not being vague or over-broad has suddenly become so. A proper respect for the principle of stare decisis dictates that we not recede from the conclusions reached in these earlier cases.

It was urged in the briefs and at oral argument that one need not knowingly engage in the prohibited conduct to fall within the reach of section 827.04(3), Florida Statutes (1977). We believe it to be implicit in the cited decisions, and we so construe the statute, that the acts proscribed by the law must be performed under such circumstances that a person of common understanding would know that they would cause or tend to cause or encourage or contribute to the delinquency or dependency of a person under the age of eighteen years.

Holding as we do that section 827.04(3), Florida Statutes (1977), is constitutional as construed, the orders of the County Court of Pinellas County, Florida, granting the motions to dismiss are reversed and these cases are remanded to the county court for further proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

HATCHETT, J., dissents.

      . § 827.04(3), Fla.Stat. (1977):
      “Any person who commits any act which thereby causes or tends to cause or encourage any person under the age of 18 years to become a delinquent or dependent child, as defined under the laws of Florida, or which contributes thereto, or any person who shall, by act, threats, commands, or persuasion, induce or endeavor to induce any person under the age of 18 years to do or to perform any act, to follow any course of conduct, or so to live, as would cause or tend to cause such person under the age of 18 years to become or to remain a dependent or delinquent child, as defined under the laws of this state, is guilty of a misdemean- or of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. It shall not be necessary for any court exercising juvenile jurisdiction to make an adjudication that any child is delinquent or dependent in order to prosecute a parent or any other person under this section. An adjudication that a child is delinquent or dependent shall not preclude a subsequent prosecution of a parent or any other person who contributes to the delinquency or dependency of the child.”

      . § 828.21, Fla.Stat. (1959):
      “Causing minor under eighteen to become delinquent or dependent child.—
      (1) Any person who shall commit any act, which causes or tends to cause, or encourage any person under the age of eighteen years to become a delinquent or dependent child, as defined under the laws of Florida, or which act contributes thereto, or any person who shall by act, or by threats, or commands, or persuasion, induce or endeavor to induce any such person, under the age of eighteen years, to do or to perform any act or to follow any course of conduct, or to so live as would cause or manifestly tend to cause any such person under the age of eighteen years to become or to remain a dependent or delinquent child, as defined under the laws of the state, shall be guilty of a misdemeanor.
      (2) Any person convicted of violating this section shall be punished as provided by the laws of Florida for persons convicted of contributing to the dependency or delinquency of children under the age of eighteen years.”

      . In this context, “knowledge” means that there was a substantial and unjustifiable risk that the acts engaged in would cause or tend to cause or encourage delinquency. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

        Cf. State v. Winters, 346 So.2d 991 (Fla.1977) (simple negligence an insufficient basis upon which to ground criminal liability).


text:
    Jack R. SANDSTROM, etc., et al., Appellants, v. George N. LEADER et al., Appellees.
    No. 53341.
    Supreme Court of Florida.
    March 22, 1979.
    Rehearing Denied May 16, 1979.
    Jim Smith, Atty. Gen. and Horace Schow, II, Asst. Atty. Gen., Tallahassee, for appellants.
    Douglas L. Williams, of Orr, Nathan & Williams, Miami, for appellees.
   SUNDBERG, Justice.

This is an appeal from an order of the Circuit Court for Dade County, Florida, which initially and directly passed upon the validity of section 400.17, Florida Statutes (1977). The issue presented is whether section 400.17(2)(a), which in pertinent part proscribes the solicitation, offer, or receipt of a bribe in connection with the furnishing of services to a nursing home patient, is unconstitutionally vague. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellees, George N. Leader, Mary Pella-tier, and Greynolds Park Manor, Inc., were charged by information with receiving a bribe in connection with furnishing services to a nursing home patient in violation of section 400.17(2)(a), Florida Statutes (1977). Prior to commencement of criminal proceedings in the County Court for Dade County, Florida, appellees filed a petition for writ of habeas corpus in the Circuit Court for Dade County, alleging that they were being illegally restrained and deprived of their property by virtue of the unconstitutionality of section 400.17. The circuit court entered an order to show cause and, after argument, the writ of habeas corpus was made absolute. The circuit court found that (1) the language of subsections (l)(b) and (2)(a) does not provide reasonable notice of the conduct which it seeks to prohibit; and (2) there are internal contradictions between subsections (l)(b) and (2) on the one hand, and subsection (5) on the other, which also cause the act to provide insufficient notice to potential violators of its provisions. The circuit judge concluded that because of the vagueness and breadth of the statute, innocent conduct of individuals or of nursing homes could come within its ambit. Accordingly, the judge found “that Section 400.17, Florida Statutes, 1977, is . void.” For the following reasons, we conclude that the trial judge erred in finding section 400.17, Florida Statutes (1977), unconstitutional.

We must first address the proper scope of our review. It was proper for appellees to contend that other subsections of the statute, when read in conjunction with the provisions under which they were charged, produced such inconsistencies as to render the charging provisions impermissi-bly vague. However, these litigants did not possess the requisite standing to argue that the subsections of 400.17 under which they were not charged were void for vagueness. Fundamental constitutional principles dictate that one may not challenge those portions of an enactment which do not adversely affect his personal or property rights. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Champe, No. 53,811 (Fla. Dec. 14,1978); Land v. State, 77 Fla. 212, 81 So. 159 (1919). Such a personal stake in the outcome of the controversy is necessary in order “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions[.]” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). If we failed to abide by this limitation our Court would be relegated to being a “roving [commission] assigned to pass judgment on the validity of the [state’s] laws.” Broadrick v. Oklahoma, 413 U.S. at 611, 93 S.Ct. at 2915; accord, Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Further, an attack upon section 400.-17 as unconstitutionally overbroad will not lie absent an assertion that the provision proscribes constitutionally protected speech or activities. See State v. Bales, 343 So.2d 9 (Fla.1977); cf. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (right to privacy); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (right to travel); Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (freedom of expression); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 858, 860 (1970).

Consequently, the scope of the circuit court’s review should have been limited to a determination of whether subsection (2)(a) and the corresponding definitional provision, subsection (l)(b), are unconstitutionally vague. Although the lower court ruled upon the validity of section 400.17 as a whole, we will confine our inquiry to the boundaries dictated by the foregoing principles.

The second procedural issue concerns whether habeas corpus proceedings are a proper vehicle for the constitutional challenge of a statute. To dispose of this question we need only cite to several of a myriad of cases which have held that a writ of habeas corpus may be utilized by an accused to challenge the constitutionality of a statutory provision under which he is charged. E. g., State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla.1966); Roberts v. Schumacher, 127 Fla. 461, 173 So. 827 (1937); Lehman v. Sawyer, 106 Fla. 396, 143 So. 310 (1932); Buchanan v. State ex rel Hunt, 171 So.2d 186 (Fla. 3d DCA 1965).

We now come to the crux of the case before us — whether section 400.17, subsections (l)(b) and (2)(a), Florida Statutes (1977), are unconstitutionally vague. Ap-pellees properly concede that the necessary inquiry is whether the provisions forbid the doing of an act in terms so vague that individuals of common intelligence must guess at their meaning. Brown v. State, 358 So.2d 16 (Fla.1978); D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); State v. Wershow, 343 So.2d 605 (Fla.1977).

Subsection (l)(b) of section 400.17 defines a “bribe” as:

[A]ny consideration corruptly given, received, promised, solicited, or offered to any individual with intent or purpose to influence the performance of any act or omission.

Subsection (2)(a), which establishes the substantive offense, proscribes the solicitation, offer, or receipt of a “bribe” in connection with the furnishing of items or services to a nursing home patient. Appellants contend that the term “bribe” is sufficiently definite to inform potential violators of the acts within its ambit because of its definitional requirement that the consideration be colored by “corrupt” motive. Appellees contend, however, that the element of corruptness does nothing to cure the purported vagueness of the term “bribe.” In support of their position, appellees rely upon our recent decision in State v. DeLeo, 356 So.2d 306 (Fla.1978). There we held that the element of “corrupt intent” did not obviate the vagueness of section 839.25, Florida Statutes (1977), the “Official Misconduct” law. DeLeo, however, is inapposite. Our invalidation of section 839.25 was not predicated upon the fact that the term “corrupt” was vague per se but, rather, was because the enactment was so open-ended that persons could not reasonably determine what conduct was proscribed. This was so because “official misconduct” was

keyed into the violation of any statute, rule or regulation, pertaining to the office of the accused, whether they contain criminal penalties themselves or not, and no matter how minor or trivial.

356 So.2d at 308.

In addressing the requirement that the violation has occurred with “corrupt intent,” this Court noted:

This element of the offense might prevent its arbitrary application, but it does not. All that ... is necessary for intent to be corrupt is that it be “done with knowledge that the act is wrongful and with improper motive.” This standard is too vague to give men of common intelligence sufficient warning of what is corrupt and outlawed, therefore, by the statute. The “corruption” element, as defined, does nothing to cure the statute’s susceptibility to arbitrary application.
While some discretion is inherent in prosecutorial decision-making, it cannot be without bounds. The crime defined by the statute, knowing violations of any statute, rule or regulation for an improper motive, is simply too open-ended to limit prosecutorial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its “catch-all” nature.

Id. (Footnotes omitted).

The definition of “corrupt” in DeLeo, therefore, begged the question of what acts were proscribed by section 839.25; prohibiting acts which were “ ‘done with knowledge that the act is wrongful and with improper motive’ ” did nothing to inform potential violators of exactly what acts fell within the parameters of the statute. Because of its all-encompassing nature, the remainder of the statute lent equally inept assistance to those who sought to determine what conduct was prohibited.

In contrast, the statute before us is not “open-ended.” Section 400.17(2)(a) delineates the proscribed conduct with sufficient specificity. Subsection (l)(b) narrowly defines the term “bribe” to include only that consideration which is corruptly intended to influence the performance of duties related to furnishing items or services to a nursing home patient. Through application of the key phrase, corrupt intent to influence the performance of these designated duties, persons of ordinary intelligence may reasonably determine what conduct is unlawful under section 400.17(2)(a). We need only look to the facts of this case to elucidate why appellees’ allegations of vagueness must fail. Appellees were charged with demanding and receiving “contributions” ranging from $150 to $550 from the relatives of various patients to insure the latter’s admission or retention in a nursing home. Appellees purportedly made it clear that the furnishing of these services — admission and retention of patients — was contingent upon, and therefore would be influenced by, the payment of these “contributions.” This alleged conduct clearly fell within the ambit of section 400.-17(2)(a). Further, there are no inconsistencies between subsections (l)(b) and (2)(a) and subsection (5) of the enactment. Subsection (5) provides for administrative sanctions against the nursing home on behalf of which illicit contributions are solicited. These sanctions are in the form of denial, suspension, or revocation of the nursing home’s license. The other subsections, in contradistinction, provide criminal penalties for their violators.

Finally, appellees have presented us with an array of acts which, although arguably well intended, might be deemed punishable under section 400.17(2)(a). We are constrained by fundamental principles of appellate review to decline appellees’ invitation to decide whether these hypothetical acts would fall within the proscriptions of section 400.17(2)(a). Evans v. Carroll, 104 So.2d 375 (Fla.1958); Sarasota-Fruitville Drainage District v. Certain Lands, 80 So.2d 335 (Fla.1955); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA 1970); 3 Fla.Jur.2d Appellate Review § 286 (1978). The fact that the general conduct to which section 400.17(2)(a) is directed is plainly within its terms is a sufficient basis for our finding that this provision is not unconstitutionally vague. That marginal cases might exist where doubts may arise as to whether there may be prosecution under subsection (2)(a) does not render the enactment unconstitutionally vague. United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Dye, 346 So.2d 538 (Fla.1977).

Accordingly, the order of the Circuit Court for Dade County, Florida, finding section 400.17, Florida Statutes (1977), to be unconstitutionally vague and overbroad, is quashed and this cause is reversed and remanded to that tribunal for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

      . The relevant portions of § 400.17, Fla.Stat. (1977), read:
      Bribes, kickbacks, etc., prohibited.—
      (1) As used in this section:
      (a) “Kickback” means that part of the payment for items or services which is returned to the payor by the provider of such items or services with the intent or purpose to induce the payor to purchase the items or services from the provider.
      (b) “Bribe” means any consideration corruptly given, received, promised, solicited, or offered to any individual with intent or purpose to influence the performance of any act or omission.
      (2) Whoever furnishes items or services directly or indirectly to a nursing home patient and solicits, offers, or receives any:
      (a) Kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment; or
      (b) Return of part of an amount given in payment for referring any such individual to another person for the furnishing of such items or services;
      shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, or by fine not exceeding $5,000, or both.

      (5) The admission, maintenance, or treatment of a nursing home patient whose care is supported in whole or in part by state funds shall not be made conditional upon the receipt of any manner of contribution or donation from any person. However, this shall not be construed to prohibit the offer or receipt of contributions or donations to a nursing home which are not related to the care of a specific patient. Contributions solicited or received in violation of this subsection shall be grounds for denial, suspension, or revocation of a license for any nursing home on behalf of which such contributions were solicited.