author: DORE, Judge.

text:
    GENERAL SECURITIES CO., Inc., v. JUMONVILLE.
    No. 3043.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    L. C. Parker and Frederick A. Scott, both of .Baton Rouge, and Joe T. Cawthorn, of Mansfield, for appellant.
    Pitcher & Daggett, of Baton Rouge,' La., for appellee.
   DORE, Judge.

On December 11, 1946, defendant executed his promissory note payable to the order of bearer at the office of plaintiff, in the sum of $1,907.40, payable in twelve monthly installments of $158.95, each, the first installment being due and payable on January 11, 1947; and a like installment being due and payable on the 11th day of each month thereafter, until all installments are paid. The note provides for interest at the highest conventional rate (8%) at the maturity of each installment until paid, and for attorneys’ fees of a minimum of twenty per cent, of the balance of principal and interest unpaid in the event of being placed in the hands of an attorney for collection or suit. The note further contains the usual acceleration clause, that is, if any one installment was unpaid on its maturity date, the entire balance of the note would immediately become due and payable. In order to secure .the note, together with interest and attorneys’ fees, the defendant executed, on the day and date of the note by authentic act, a chattel mortgage on a 1946 Crysler New Yorker •Coupe automobile. The note is paraphed “Ne Varietur” by the Notary Public, to identify it with the chattel mortgage act.

The note and mortgage were taken and discounted by the plaintiff on the day and date of the note. The discount sheet shows that the following amounts were deducted: Discount $152.40, Insurance $105, and net cash to customer (defendant) $1,650. Defendant made regular monthly payments through September, 1947. He failed and refusedi to make the October, 1947, payment and he failed and refused to pay the subsequent installments.. This suit was filed by, the plaintiff for a judgment against the defendant in the sum of $476.85, being- the last three installments due and unpaid, together with interest at the rate of eight per cent. (8%) per annum from date of maturity of each installment until paid, and 20% on both principal and interest unpaid as attorneys’ fees, with recognition of its chattel mortgage rights on the automobile.

The plaintiff obtained a writ of sequestration, sequestering the automobile. The defendant moved to set aside the sequestration, which motion was referred to the merits. He thereafter bonded the writ of sequestration. He then filed an exception of no right or cause of action, which was also referred to the merits. He thereafter filed his answer. His motion to set aside the writ, his exception of no right or cause of action and his defense to the suit is based on usury. In his answer he sets up a demand in reconvention for the amount which he had paid the plaintiff on the note.

The trial judge, in a written opinion, gave judgment in favor of plaintiff and against the defendant in accordance with plaintiff’s demand. He also rejected defendant’s reconventional demand. Defendant has appealed.

It is undisputed that the note was discounted at the rate of eight per cent. The question then arises whether such a transaction is illegal, striking the note with nullity and making it unenforceable.

The law governing conventional rate of interest in our State is Article 2924 of the Civil Code. Although that article lays down the rule that the amount of the conventional interest cannot exceed . eight per cent., yet said article also provides exceptions to that rule, viz.: “The owner or dis-coimter of any note * * * payable to order or bearer or by assignment, shall have the right to claim and recover the full amount of such note * * *, and all interest not beyond eight per cent per annum interest that may accrue thereon, notwithstanding that the rate of interest or discount at which the same may be or may have been discounted has been beyond the rate of eight per cent per annum interest or discount * * *

“The owner of any promissory note, * * * for the payment of money to order or bearer or transferable by assignment shall have the right to collect the whole amount of such promissory note, * * * notwithstanding such promissory •note, * * * may include a greater rate of interest or discount than eight per cent per annum; provided, such obligation shall not bear more than eight per cent per an-num after maturity until paid.” (Italics ours.)

The Supreme Court and the Courts of Appeal of this State have had occasions to pass upon the very question herein presented and to consider Article 2924 of our Civil Code. Under the decisions of our Courts, it is- now well settled jurisprudence that the holder of a promissory note may collect the face of the note notwithstanding such note may include a greater discount than eight per cent, per annum, provided-such note does not have a greater rate of interest than eight per cent, after maturity. See La.Digest, (Dobbs-Merrill) Vol. 7,. Usury, par. 5 and 6. The effect of Usury is the forfeiture of the entire interest so contracted. See La.Digest, Vo'l. 7, par. 19. The defense in this case cannot prevail.

In argument, orally and in brief, the defendant contends that the transaction-herein attacked is also in violation of Sections 12 and 14 of Act 94 of 1942, the Small Loan Law. As this loan was for an amount in excess of $300, we fail to see any applicability of the Act to this loan. Article 2924 of the Revised Civil Code is the law governing the case.

Counsel for defendant ingeniously contends that the Small Loan Law, Act 94 supra, supercedes the provisions of Article 2924 of the Revised Civil Code. This may be true in so far as it may affect loans of $300 and less, but certainly it does not affect loans of over $300. We see no merit in defendant’s contentions.

The next contention of defendant is that the trial judge erred in condemning him to pay 20 per cent, attorneys’ fees-in that plaintiff failed to introduce in evidence the chattel mortgage securing the-note and cites the case of General Electric Contracts Corporation v. Murray, La.App.,. 20 So.2d page 19. This case is easily distinguishable from the present case. In that case, the note itself did not provide for attorneys’ fees, but merely referred to a chattel mortgage which provided for 'attorneys’ fees. In this case the note itself provides for a reasonable attorneys’ fees at not less than twenty per cent, of the balance of principal and interest.

For these reasons the judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CARTER v. LE BLANC LUMBER CO. et al. CRIMP v. LE BLANC LUMBER CO. et al.
    No. 3049.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.

      Sanders Miller Downing & Rubin, of Baton Rouge, for appellants.
    Watson Blanche Fridge & Wilson, of Baton Rouge, for appellees.
   DORE, Judge.

At approximately 9:45 P.M., on Saturday, December 8, 1945, a 1936 Ford coach automobile .owned and being driven by one Thomas Carter, and proceeding south on the Plank Road in the Parish of East Baton Rouge, collided in the rear of a 1938 Ford truck, being driven by one Isador Deamer, in the course and scope of his employment by the owner of the Ford truck, the defendant LeBlanc Lumber Company. At the time of the collision Thomas Carter was accompanied by a friend, Fate Crimp, and as a result of the collision the automobile of Thomas Carter was demolished and he and his guest sustained severe personal injuries. As a result Thomas Carter and Fate Crimp filed suits against the LeBlanc Lumber Company, a partnership, and J. Burton LeBlanc and Jesse LeBlanc, individually, as members of said partnership, and against the Standard Accident Insurance Company as the insurer of the Le-Blanc Lumber Company, each asking for his respective damages resulting from the collision. The two cases were consolidated for trial.

The petitions of the respective plaintiffs are similar in that both allege that the collision was caused solely by the gross negligence of the defendant truck driver Isador Deamer in proceeding on the Plank Road in East Baton Rouge Parish; a heavily trav-elled paved highway, in a truck loaded with logs, not having any tail lights or flags or clearance lights of any ldnd. They allege that they were driving at a reasonable rate of speed, to-wit, at about 35 miles per hour, and that as they approached the Ford truck owned by the defendants herein from the rear, both Thomas Carter, the driver of the Ford coach, and his guest Fate Crimp, were blinded by the lights of automobiles proceeding north in the opposite traffic lane of the Plank Road, to the extent that it was impossible for either Carter or his guest, Crimp, to see any vehicles'to their front, proceeding south on said Plank Road which had no tail or clearance lights.

Carter in his suit claims damages in his own behalf in the amount of $2,170.50, and for the use and benefit -of his insurer in the sum of $250, representing his damaged automobile, less $50 deductible, and the plaintiff Crimp in his suit claims damages of $2,652.40, representing loss in wages of $64.80; medical expenses of $87.60, loss of three teeth, $500, disfigurement, $1,000, and pain and suffering, $1,000.

The original petitions were met by exceptions of vagueness, mainly to the effect that the exact time and place of the collision were not therein set forth. The exceptions of vagueness were met by amended petitions and thereafter an exception of no cause and no right of action was filed as to each petition based mainly on the proposition that the plaintiffs had not shown that they were free of negligence. This exception was overruled by the Court, and properly so, because it is fundamental that the plaintiff does not have to allege facts which negative negligence on their part, and their petitions positively set forth that the collision on which the suits are based was caused solely by the gross negligence of the defendant and its truck driver operating in the course of his employment.

The defendants, after the exception was overruled, filed answer in each suit in which they denied the material allegations of the petitions and in which they allege that the proximate cause of the collision was the gross negligence of Carter, the driver, and of Crimp, his guest, in proceeding along this highly travelled highway at an unreasonable rate of speed and without keeping the car in which they were travel-ling under proper control and without keeping a proper lookout. In the alternative, the defendants plead that should any negligence be found on the part of Isador Dgamer, the truck driver, then and in that event it should be found that the plaintiffs were guilty of negligence which contributed to the accident, barring their recovery.

After trial of the case, the trial judge rendered judgment in the Carter case rejecting his demand and dismissing his suit at his cost, and rendered judgment in the Crimp case in his favor in the sum of $1,500 for personal and permanent injuries, pain and suffering, and the sum of $57.50 for medical expenses, and for all costs of court, and assessed an expert fee in favor of Dr. Alvin Stander in the amount of $25 as part of the costs. In the Crimp case the defendants perfected a suspensive appeal, and in the Carter case, the plaintiff perfected a devolutive appeal. Before us, of course, the same facts are urged as before the lower court.

We do not have the benefit of written reasons for judgment by the trial judge, but it is apparent from his judgments that he found that the defendant truck driver was guilty of gross negligence and that the plaintiff Carter was guilty of contributory negligence, but that such contributory negligence could not be imputed to Crimp.

It is proven by the preponderance of the evidence that the defendants’ truck was being driven along the highway without any tail lights or clearance lights whatsoever and was loaded with logs and had no flags or signals of any kind in the rear of the logs to give warning to oncoming traffic from the rear. It is clear that the truck driver was driving the truck with the knowledge and consent of the defendant partnership, LeBlanc Lumber Company, and the individual partners thereof and in the course and scope of his employment and that in view of the absence of rear flags, rear lamps and clearance lamps it was driving a truck in violation of the Highway Regulatory Act, Act No. 286 of 1938, and was acting in a grossly negligent manner.

The evidence is 'not clear as to the type of truck which was being driven nor as to how it was loaded with logs, but it is sufficient to show that Isador Deamer was guilty of gross negligence, while driving in the course and scope of his employment by the defendant partnership.

The only evidence we have as to why Carter failed to see the unlighted truck, outside of the fact that it was unlighted in the rear, is the testimony of Carter himself and his guest, who testified in the same manner; that is, that they were driving at a reasonable rate of speed, at about 45 miles per hour and that at a distance of about 50 feet prior to the collision they met an automotive vehicle coming from the opposite direction with its bright lights burning, and as a result they were both blinded and did not perceive the log truck of the defendant until within a short distance thereof, which they approximate at 10 feet, and that at that time Carter, the driver, cut off his gas and applied his brakes, but was unable to keep from colliding with the log truck; that as a result of the collision, the coupling pole of the truck struck through the right head light of the Carter automobile and ran through the car, demolishing the car and causing personal injuries to the occupants.

In so far as the plaintiff Crimp is concerned,' it does not appear from the evidence that he ever had any cause or reason to exercise control of the operation of the Carter automobile. The doctrine that a guest not having charge of the operation of an auto is not required to keep a lookout for danger, but can rely upon the discharge of that duty by the driver who is responsible for its operation is well recognized in this State. The guest, as we had occasion to say in other cases, cannot rely entirely or implicitly on the driver of the car, but is entitled to a reasonable extent, to place reliance on the care and proper management of the one operating the car. The guest cannot be placed on the same footing as the driver, in reference to the care, caution and vigilance which • is required of the driver of a motor vehicle. The guest is not expected, as a general proposition, to have seen what the driver “should have seen”.

In this case the plaintiff Crimp was a guest and his rights must be determined in that light. He had been travelling on the highway at about 45 miles an hour, a rate of speed not excessive, and neither he nor the driver, from the evidence, had indulged in alcoholic drinking of any kind and both were in proper condition for the purpose-of travelling on the highway. He had no reason, to complain about the way Carter was driving and no reason to anticipate that the driver of the oncoming car would fail to dim his lights and thereby cause him and Carter to become blinded, especially considering the fact that Carter dimmed his own lights. Whatever negligence that can possibly be charged to Carter could not conceivably be charged to Crimp, and in view of the fact that the gross negligence of the defendant is established and was a proximate cause of the collision, we can find no- error in the judgment on the question of liability as to Crimp.

As to Crimp’s quantum of damages, it is shown by the evidence that he was knocked unconscious in the accident and suffered much pain; that he had lascera-tions of the face, about the mouth primarily, and of the leg, in the region of the knee; that he lost three upper teeth and that his injuries kept him confined for approximately ten days; that thereafter he was able to work at his usual salary, but was forced to do light duty for some time thereafter and to continually keep a towel with him because of a discharge from his injured mouth. The award of $1,500 for pain and suffering and permanent injury appears to be reasonable. The other item awarded of $57.50 for medical expenses has been proved.

With reference to the case of Carter, we recognize the general rule which makes it the duty of a driver of an automobile to maintain a speed sufficiently, slow and to have such control of his car that he can stop within the distance in which he can plainly see an obstruction or danger ahead, yet it has been well recognized that this rule has exceptions and modifications.

In the case of Woodley & Collins v. Schusters’ Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469, in discussing whether or not the driver of an automobile should be deemed negligent' for failing to slow down, the Supreme Court stated “that it depended on the circumstances of the particular case, and that it is not easy, nor safe, to lay down a hard and fast rule on the subject. The difficulty in laying down a hard and fast rule is that the act provides that the conditions and circumstances must be considered as well as the traffic, surface and width of the highway, and the location of the neighborhood. Such being the case, the particular facts of each case must be considered in arriving at a conclusion, and it would not be safe to lay down a hard and fast rule for that reason.” Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377, 379(2, 3) (Italics ours.)

In determining whether an automobile driver should be held responsible for not seeing a truck with which he has a collision, the character, appearance and visibility of the truck must always be taken into consideration. In the cases at bar, although the evidence is not clear, the truck of the defendant was a log truck, heavily loaded with logs. This truck was an ordinary log truck consisting of a tractor and rear wheels attached by a coupling pole without any back, save that formed by the stack of logs; there was no area to reflect the lights of oncoming automobiles to its rear; its rear end generally stands about four feet from the ground. In this case Carter was travelling at a safe speed considering the prevailing weather condition and the highway, it being a paved highway with light traffic at that time, and the weather being clear. He could not anticipate that a log truck would be travel-ling in his direction in violation of law, that is, without rear lights and flags and side clearance lights. According to his testimony, and we see no reason to question his veracity, he had dimmed his lights for the oncoming car, and the driver of the oncoming car failed to dim his lights. He was blinded only at the time he was about to pass the oncoming car. Upon being so blinded, he immediately released his accelerator and applied his brakes. He could not do any more before running into the rear of the log truck. It appears to us that Carter is corroborated by the testimony of Johnny Gross, one of the defendant’s witnesses, who testified that as an oncoming car with “pretty bright” lights was passing the truck, he and the truck driver heard and felt a “bump” to the rear of the truck.

This case appears to us similar to the case of Rea v. Dow Motor Co., La.App., 36 So.2d 750. In that case the plaintiff had a rear end collision with an army truck and contended, among other things, that the cause of the collision was that the truck had no rear lights or reflectors or flares; that it was olive drab in color and difficult to see. In that case the Court sustained the plaintiff’s position and excused him from the general rule that he should have had his car under control to the extent of perceiving the army truck within the range of his headlight’s and stopping, and avoiding the collision. In the Dow case the truck was parked, whereas in the case at bar the log truck was travelling, but in the case at bar, in addition to the difficulty of seeing the log truck, the driver was blinded immediately prior to the collision.

Under these circumstances we hold that the sole proximate cause of this accident was the gross negligence of the defendants in allowing this log truck to be driven on a main paved highway, at night, fully loaded with logs, and without rear lights or flags or clearance lights, and that this case comes within the exceptions of the general rule hereinabove mentioned.

As to Carter’s quantum of damages, the evidence shows that his car was damaged in the estimated amount of $300, and that as a result his insurance company, under a $50 deductible policy, paid him the sum of $250, making a loss sustained by him of $50, and on the part of his insurer of $250. The defendant contends, and it is shown, that he received the sum of $65 for the salvage of his damaged automobile, but it is our view that this salvage was over and above the actual damage sustained by the plaintiff Carter, and represented his remaining interest in the case, we therefore find that in so far as the automobile is concerned, plaintiff suffered a loss of $50 and his insurer suffered a loss of $250. With reference to the other claims for damages of plaintiff Carter, the only evidence we have is his own testimony to the effect that as a result of the collision his glasses were broken and he received cuts on his face and on his right knee. The Court states that he received a cut on the right side of the eye about a quarter of an inch long and a cut approximately three quarters of an inch below the right eye, about one-half of an inch long. We have no testimony as to the cost of his glasses, nor any medical testimony as to the seriousness of the cuts received by him in the collision. His injuries do not appear to be substantial and we feel that he did 'suffer minor injuries and that an award of $100.00 would be ample therefor. Accordingly, the judgment of the lower Court should be reversed and judgment granted in the favor of plaintiff Carter in the sum of $150, and the sum of $250 for the use and benefit of General Insurance Company of America, with legal interest from judicial demand until paid, with costs.

A decree in each case will be granted in accordance with the reasons above set forth.


text:
    Fate CHIMP v. LE BLANC LUMBER CO. et al.
    No. 3050.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Watson Blanche Fridge & Wilson, of Baton Rouge, for appellants.
    Sanders Miller Downing & Rubin, of Baton Rouge, for appellee.
   DORE, Judge.

For the reasons this day handed down in the consolidated cases of Carter and Crimp v. LeBlanc Lumber Co. et al., La. App., 37 So.2d 471, the judgment appealed from is affirmed, at defendants’ costs.


text:
    Thomas CARTER v. LE BLANC LUMBER CO. et al.
    No. 3049.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Sanders Miller Downing & Rubin, of Baton Rouge, for appellants.
    Watson Blanche Fridge & Wilson, of Baton Rouge, for appellees.
   DORE, Judge.

For the reasons this day handed down in the consolidated cases of Carter and Crimp v. LeBlanc Lumber Co. et al., La.App., 37 So.2d 471, it is ordered that the judgment appealed from' is hereby annulled, reversed and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Thomas Carter, and against the defendants LeBlanc Lumber Co., J. Burton Le-Blanc, Jessie LeBlanc and the Standard Accident Insurance Company of Detroit, Michigan, in solido, in the full sum of One Hundred and Fifty ($150) Dollars, for himself and the further sum of Two Hundred and Fifty ($250) Dollars for the use and benefit of the General Insurance Company of America, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings.


author: LeBLANC, Judge.

text:
    HOLLEY v. BUTLER FURNITURE CO., Inc. et al.
    No. 3047.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 10, 1948.
    Rehearing Denied Dec. 23, 1948.
    Writ of Certiorari Granted Feb. 14, 1949.

      Landry & Landry, Dan F. Hunter and Hamlet D. May, all of Baton Rouge, for appellant.
    Breazeale Sachse & Wilson, of Baton Rouge, for appellee.
   LeBLANC, Judge.

This suit was instituted by Lloyd H. Holley to recover damages to an automobile which, he alleges, was his property, in a collision with a Reo Truck owned by the Butler Furniture Company, Inc., and operated at the time by its employee, William Polk. The amount of the damages claimed is in the sum of $223.11.

The collision is alleged to have taken place on October 19, 1946, at about 11 o’clock P.M., at the intersection of Gracie Street with North 22d Street in the City of Baton Rouge. The suit is directed against the alleged owner of the truck, its driver and the liability insurance carrier, Insurers Indemnity and Insurance Company.

The case was put at issue by the joint answer filed on behalf of all three defendants in which it was admitted that William Polk was the employee of the Butler Furniture Company, Inc., and further that that company did, on October 19, 1946, own a Reo Truck which was involved in an accident with an automobile that was being operated by the plaintiff, Lloyd R. Holley. Otherwise, the answer may be said to be a denial of all of the other allegations of plaintiff’s petition, especially those relating to the manner in which the accident occurred and in which the driver of the Reo Truck is charged with the negligence that is said to have caused the accident.

The case having thus been put at issue was, on March 25, 1948, taken up for trial in open court in the District Court of East Baton Rouge Parish. During plaintiff’s examination as a witness, it developed that the car which he was driving on the day of the accident did not belong to him but belonged to his father, Marvin H. Holley. It was further made to appear that he did not pay for the repairs that are sought to be recovered in this suit brought by him, but that they were paid for by his father, the owner of the car.

After that testimony had been adduced, counsel for the defendants filed an exception of no cause of action and in the alternative an exception of ño right of action on the part of the plaintiff against them or any of them.

After the filing of those exceptions plaintiff appeared in court through his counsel to file an amended and supplemental petition in which he made the same allegations with reference to the accident as he had made in his original petition but added further allegations to show that the car he was driving was owned by his father, Marvin H. Holley, and that he was using the same with the express consent and approval of his father. Further he alleged that his father paid for the repairs to the automobile but that he, plaintiff, recognized a moral obligation on his part to repay him for all of his expenses and losses resulting from the collision. He alleges also that he did not know that, as a matter of law, the suit should have been brought in the name of the owner of the car and that he inadvertently failed to inform his attorneys that his father, not he, was the owner. All of this, he alleges, was not done with any intent to misrepresent the facts or to mislead anyone. Finally, he alleges that he filed this suit with the consent and approval of his father' and that he had an oral mandate from him authorizing him to prosecute the suit and recover the damages, sought, with the understanding that any sum recovered was to inure to the benefit of his father.

On the same day that plaintiff sought to file this supplemental and amended petition there was also filed a petition of intervention on behalf of his father, Marvin Holley, in which' practically the same allegations as are contained in the supplemental and amended petition are made and in which it is further pleaded, in the alternative, that, the suit filed originally by the plaintiff fully apprised the defendants of the claim that was being made against them and interrupted prescription on all claims arising out of said accident in favor of any and all persons having a right to assert any.

As appears from the extract of the minutes of court, on the day that the exceptions of no cause and no right of action were set for hearing, and after the same had been argued and taken under advisement by the court, the defendants objected to the filing of the supplemental petition, which matter was set for hearing at a later date. That matter was duly heard on the day assigned and, we take it, that at the same time there was also an objection to the filing of the petition of intervention on the part of Marvin H. Holley. The court took these matters under advisement, and later rendered judgment in favor of the defendants, sustaining the exception of no right of action and denying plaintiff the right to file his supplemental and amended petition. The intevention filed by Marvin H. Holley was dismissed in the same judgment. The exception of no cause of action filed by the defendants was over-ruled. It is from that judgment that both plaintiff and the intervenor, Marvin Holley, have taken this devolutive appeal.

In this court we do not find the defendants complaining of the ruling of the trial court which over-ruled the exception of no cause of action and it seems as though we are concerned only with the exception of no right of action which is based on Article 15 of the Code of Practice. That article provides in specific terms that “An action can only be brought by one having a real and actual interest which he pursues, but as soon as that interest arises, he may bring his action.” The plaintiff in this case did allege in his petition as though he had a real and actual interest to prosecute an action against these defendants but it developed very early in the trial of the case that he did not have such interest ánd consequently was in na position to bring it. The application of that article to the situation which was presented was made evident. Counsel for plaintiff evidently realized this and sought to evade its provisions by attempting to file the supplemental petition in which they tried to make it appear that the plaintiff, although not having himself a real and actual interest in the matter, was acting for or on behalf of the party who did have such an interest, on what was alleged to be an oral mandate. The question that is presented therefore, is whether a right of action, under those circumstances, can be maintained.

Counsel seem to rely for their main support on this point on two cases which are discussed in the brief. The first is that of Smith v. Atlas Steam Cordage Co., 41 La. Ann. 1, 5 So. 413, 414. We have examined that case and find the principal point involved was whether the defendants in the suit could up-hold and maintain a recon-ventional demand against a non-resident corporation on a claim which had no connection with the original demand of the litigation. The matter came to the attention of the court after it had been made to appear by answer to interrogatories propounded to the plaintiff that he had no interest in claiming the amount of overdue coupons which were the object of the suit as they were the property of L. Waterbury & Co. of New York. Upon such a representation, the contention that arose was whether Waterbury & Co. could be considered as a party before the court and whether the court had jurisdiction over it on a reconventional demand which had been set up against it.

We do not quite understand from the statement of the decision, exactly what was the relation between the plaintiff Smith and Waterbury & Co. but would infer from some of the language used that Smith was shown to have been the agent of the company and had been authorized to bring the suit. In its statement of the proposition of law on which it relied in deciding the point involved, the court said: “It is established beyond possible dispute, that when one sued as the agent of another, whether this is done avowedly ab initio, or is subsequently ascertained, he is not the party plaintiff, but that his constituent, for whose benefit he acts, occupies the attitude of real plaintiff in the case.” (Italics ours.)

Counsel for plaintiff can perhaps find some comfort in the language used when the court stated that even when the agency of the plaintiff is ascertained subsequently, he is not, but his constituent is the real plaintiff. However we would judge that the facts developed in that case concerning the question of plaintiff’s right to represent his constituent, although not made to appear in the decision of- the court, were stronger than they are here because the facts alleged in the supplemental petition of the plaintiff and in the petition of intervention of plaintiff’s father impress us as being in the nature of an afterthought.

The words “oral mandate” under which this, suit is now sought to be up-held, as filed, were very probably prompted by the words “verbal mandate”, as used in the case of Succession of Berthelot, La.App., 24 So. 2d 185, which decision is also strongly relied upon by counsel for plaintiff and inter-venor. In that case however, the point was whether a wife, living under the regime of the community with her husband, was the proper party to bring suit against the estate of her father for a nursing debt. The services were rendered during' the existence of the community and it was contended, and properly so, that a claim for them could only be made'by the husband as the head and master of the community. After the wife had presented her claim in an opposition to the account filed by the administrator of the succession, and the same had been tried, an exception of no cause or right of action was filed whereupon the same proceedings were carried on as are being carried on in this case. The wife filed a supplemental petition claiming that she had a “verbal mandate” from her husband to bring the suit and the husband filed an intervention joining his wife in the allegations she had made. That case, however, presents a different legal situation from the one that is presented in this case. The relation between the parties was different and as the debt sued for was one belonging to the community, both the husband and the wife had a joint interest in presenting it. Whilst it is true that on some other provision of our law the husband, as master of the community, was the proper party to bring the suit, it is also trae that under our community law, the wife had an interest in making the claim. After it appeared that her claim had been brought improperly, in her name, all that her husband did was what the 1-aw required him to do, that is to lend his name, to the litigation and to obtain the judgment which was properly rendered in favor of both himself and his wife, together. In the case before us certainly no such relation existed between the plaintiff and his father and certainly also, no judgment could be rendered in favor of both of them together, as was done,in the, Berthelot case.

As against these authorities on which counsel for plaintiff rely, we are confronted with the decision of the Supreme Court in the case of Ritsch Alluvial Land Co. et al. v. Adema et al., 211 La. 675, 30 So.2d 753, which is,the decision cited by the defendants as disposing of the question at issue.

The matter presented to the court in that case first appeared on a writ which had been granted by the Supreme Court on the refusal of the trial judge to order the plaintiff to comply with a subpoena dueces tecum. That case is reported in State ex rel. Adema v. Meraux, 191 La. 202, 184, So. 825. The defendants in the first suit had filed an exception of want of interest after they had denied that plaintiff was the owner of the land that was involved in the litigation. That exception apparently was never ruled on but after the case had been set for trial, in order to sustain the motion to dismiss on the ground that the plaintiff was not the owner of the land and therefore had no interest in bringing the action, defendants filed a motion for a subpoena duces tecum asking the -attorney for plaintiff to produce in court, ■ a certain written instrument which, it was alleged, would show that the plaintiff had disposed of the land in question. It was on the district judge’s refusal to order the subpcena that the matter went to the Supreme Court on a writ. The Supreme Court ordered the district judge to have the writ issued and it was no doubt on tlie production of the instrument that the case was subsequently tried on the question of whether or not the plaintiff was the owner of the property and as such had a real interest in bringing the suit. That is the case which later was decided by the Supreme Court in favor of the defendants j)n that very issue.

After the instrument, which was a quitclaim deed, had been produced, as ordered, the defendant renewed the exception of want of interest and of no right of action on the part of the plaintiff who had filed the suit. In that case there was also filed a plea of prescription against the assignee of the plaintiff, Lenmark Lands, Inc., also a plaintiff in the second suit. The court seemed to have been rather particular in stressing the language of Article IS of the Code of Practice. It appeared that the plaintiff Ritsch Alluvial Land Company was urging that since it had obligated • itself, by contract, to permit its assignee to use its name in prosecuting any suit relative, to the land involved in the sale, that it had a sufficient interest in the litigation to satisfy the requirements of Article 15, C.P. The court found no merit in the contention made. It stated that the mere “passive action” required of the plaintiff by the contract referred to, did not create an interest in it in the subject matter of the litigation. “To sustain this contention [211 La. 675, 30 So.2d 755],” said the court, “would render Article 15 of the Code of Practice meaningless.”

It would seem, from the statement of the court, that there was some ground for the contention made as there appeared to have been some sort of understanding between the plaintiff Ritsch Land Company and its vendee or assignee of the land, regarding the use oT its name in any litigation over the lands conveyed by it. To that extent we would say there was more merit in the point made than there is in the case before us and still, as we see, the court held that the mere passive action required under such an agreement was not sufficient to create an interest such as is contemplated by Article 15 of the Code of Practice in the plaintiff to bring the suit. That case is decisive of the issue that is presented to us in the present suit and bars the plaintiff’s right of action.

As relates to the intervention filed on behalf of Marvin H. Holley, the only point to be considered is the- one to the effect that under our jurisprudence, a petition for intervention either stands or falls with the main demand. As the judgment rendered in this suit, sustaining the exception of no right of action is correct, that necessarily means that plaintiff’s suit must fall and it follows that the petition of intervention must fall with it. See Erskine v. Gardiner, 162 La. 83, 110 So. 97, and authorities therein cited.

We think that the principal concern of counsel 'for plaintiff in this suit is whether a subsequent suit filed on behalf of the real party who would have an interest, that is, Marvin H. Holley, would be subjected to a plea of prescription since more than two years have elapsed since the date of the accident causing the damage. As a matter of fact, they close their brief by stating that if we should dismiss his petition of intervention that we also hold that plaintiff’s original suit interrupted prescription in favor of Marvin H. Holley who would still be able to institute a separate action to recover the damages claimed. We note that in the Ritsch Alluvial Land Co. case, the Supreme Court held that prescription had run against the intervenor. However, in that case a plea of Prescription had been filed and the court was called on to act upon that plea. There is no such plea filed in this case and any action taken on that matter would be premature.

For the reasons stated, the judgment appealed from is affirmed at the costs of plaintiff, appellant herein.

DORE, J., recused.


author: HARDY, Judge.

text:
    BONNER et al. v. OUACHITA BAKING CO. et al.
    No. 7221.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellants.
    Redmond & Harkey, of Monroe, for ap-pellees.
   HARDY, Judge.

This suit was instituted by plaintiffs, K. C. Bonner, Ottomese Fleming, Lela Mae Fleming and Louis J. Tanner, against the defendant, Ouachita Baking Company, its several partners and their liability insurer, for the recovery of 'damages sustained as the result of personal injuries suffered in an automobile accident. After trial there was judgment against all of the defendants, in solido, in favor of plaintiff, K. C. Bonner, in the sum of $7,566.65; in favor of plaintiff, Lela Mae Fleming, in the sum of $1,691.15; in favor of Enos H. Fleming, for the use and benefit of his minor child, Ottomese Fleming, in the sum of $170.50; and in favor of Louis J. Tanner in the sum of $170.00. Defendants appealed from the judgments in favor of K. C. Bonner and Lela Mae Fleming, and the plaintiff, Lela Mae Fleming, answered the appeal, praying for an increase in the amount of the judgment in her favor to the sum of $2,691.15.

The appeal in this case is restricted solely to the question of quantum. Appellant contends that the damages awarded the plaintiffs, Bonner and Lela Mae Fleming, are excessive and it is suggested in briefs on behalf of appellant that the damages awarded the plaintiff, Bonner, should be decreased by $5,000.00, and the damages awarded the plaintiff, Lela Mae Fleming, should be decreased by $1,000.00.

The accident happened in the early morning of December 25, 1947, and all plaintiffs were immediately removed to St. Francis Sanitarium for treatment where it was found that only Bonner and Miss Lela Mae Fleming were seriously injured.

A breakdown of the judgments awarded to plaintiffs, who are before this Court in the role of appellees, discloses the fact that of the sum of $7,566.65 awarded Bonner, the amount of $1,566.65 represented property damage to his car, doctors, hospital, medical expenses and loss of salary, none of which amount was questioned by appellants. The remainder of the award, amounting to $6,000.00, which was based on an allowance for pain and suffering, is strenuously contested. Similarly, with respect to the judgment in favor of Lela Mae Fleming, the amount of $191.15, representing the actual expenses and loss of earnings is uncontested, and only the sum of $1,500.00 which was awarded for pain and suffering is called into question.

Briefly summarizing the injuries of the respective parties for the purpose of this opinion, it is established that Bonner was the victim of severe multiple injuries consisting of a serious brain concussion, a fracture of the lower jaw, particularly described as being a fracture of the. left mandible at or near the junction of the condyle with the ramus; a fracture of the patella of the right knee; abrasions and scars on the face and knee. At the time of admission to the hospital Bonner was in such serious condition that the attending physician expressed the opinion he would not live through the night. He remained in a state of unconsciousness, or semi-consciousness, for a period of some forty-eight hours; his lungs were congested, and his abdomen was rigid, which conditions, together with the brain concussion, endured for a period of several days. Bonner remained in the hospital for a period of eleven days, during which time he was given heroic treatment and, upon discharge from the hospital, he was confined to his bed for a period of several weeks. In the course of treatment of the fracture of the jaw, it was necessary to wire his jaws together, which position of immobilization was maintained for some six weeks more or less, during which time he could speak only with difficulty and was forced to remain on a liquid diet. The chip fracture of the patella of the right knee was not discovered until several months after the accident when an x-ray disclosed the nature of this injury after Bonner continued for this period to suffer considerable pain and discomfort in the knee area.

Even without specific evidence on the point, the fact that this plaintiff suffered agonizing pain for a considerable period ■of time would be obvious. The testimony of plaintiff and his medical attendants is convincing on the point, and the only question before the trial judge in this respect involved the fixing of a sum in the nature of damages commensurate with his estimate of the severity of the pain and suffering experienced by the plaintiff.

Unfortunately, there is no guide nor measure to which courts may resort as an aid in a determination of this imponderable element of pain and suffering. No sane person would subject himself to the infliction of injuries which would bring him to the very brink of death itself and through an ensuing period of severe pain solely for the purpose of procuring a monetary award. We dare say that this plaintiff would not again willingly undergo this experience for a pecuniary benefit of many times the amount awarded in this instance.

To justify a change in the award made it would be incumbent upon us to point out some manifest error on the part of our learned brother of the district court, who heard the testimony of the witnesses and observed the plaintiff at first hand. This we are unable to do and it necessarily follows that the judgment should remain undisturbed. The injuries sustained by Miss Fleming were less severe. She suffered from a mild concussion, a bad cut over her left eyebrow about four inches in length, and severe bruises to her ankles. The cut over the eyebrow healed satisfactorily but left what is described as a hairline scar. One of the sensory nerves was severed and as a result a considerable area of the left side of the young woman’s head was left numb, and, according to -the medical testimony, will likely remain permanently without feeling. Miss Fleming remained in the hospital for only a period of some two or three days and her recovery was uneventful.

It is urged that the injuries described were not of a grave nature, did not result in any extended period of suffering, and that, accordingly, the award is excessive. Conversely, in answering the appeal, it is argued on behalf of Miss Fleming that the amount of the judgment is inadequate.

We appreciate the fact that a permanent scar on a woman’s face, no matter how slight it may be, is a matter of the utmost concern to her. Likewise it is evident that an area of numbness in the scalp is a source of discomfort and annoyance. Under these circumstances we cannot justify a reduction in the amount of the award. Neither can we say that the trial judge was guilty of manifest error in the other extreme by awarding an inadequate sum. Under the circumstances we are satisfied that the amount of the judgment does substantial justice, and, accordingly, we refrain from any disturbance thereof.

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

TALIAFERRO, KENNON, and HARDY, JJ., sitting.


author: TALIAFERRO, Justice.

text:
    VINES v. PROTECTIVE INDEMNITY CO.
    No. 7168.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Anders & Anders, of Winnsboro, for appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, for appellee.
   TALIAFERRO, Justice.

The lower court sustained exceptions of no cause and no right of action filed by defendant and dismissed this suit. Plaintiff appealed.

In determining the merits of the exceptions the allegations of the petition solely were weighed and considered; and the court below, as we shall do, accepted as true the recital of facts contained in, the petition.

Plaintiff owns a Chevrolet Master DeLuxe 4-door sedan which he employed in transporting passengers for hire. At about the hour of 7:30 P. M. March 1, 1947, this sedan, loaded with passengers, and being driven by one Frank Jones, plaintiff’s agent, traveling northerly on the concrete highway approximately one-half mile south of the Town of Wisner, Louisiana, in the lower end of Franklin Parish, collided with the front portion of a large stationary Mack truck, the property of Foster and Childers, a co-partnership. Plaintiff instituted this suit against the Protective Indemnity Company of New York, carrier of insurance on the truck, to- recover damages done it in the collision and for loss of its use while undergoing repairs.

According to the allegations of the petition, a short distance south of the locus of the collision, the highway, coursing westerly, crosses at right angles, the track of the Missouri-Pacific Railway Company, and then for a brief distance gradually curves northwesterly, which is followed by another curve east of north, and finally at the end of this latter curve the road again curves west of north into an almost due north and south tangent. All of said curves form an imperfect “S”.

The truck was at or near the juncture of the last two curves. It faced southwesterly (diagonally) across the east one-half of the concrete slab, with left "front wheel near its east edge, while the right wheel rested near the center line of the slab. The truck had no burning lights nor were there flares put out on the road above and below to warn traffic of its presence. It there effectively blocked traffic.

From the above description of the road’s tortuous course, about the scene of the accident, it is readily observed, that the headlights of a motor vehicle approaching from the south, could not focus up the center of the highway, but at different angles as the curves were being negotiated. It is certain that until the car entered the second curve its headlights focused away from the truck.

Plaintiff further alleged that 'his automobile was, immediately prior to and at the time of the collision, being operated by his said agent in a careful and prudent manner, and that proper lookout was maintained by him; that the lights of the car were functioning efficiently; that as the car entered the second curve (toward the northeast) the large truck was observed by the driver at which time it was not over twenty or twenty-five feet away; that by reason of this brief distance and of the truck’s position on the highway, a collision therewith could not be averted, although said driver endeavored to do so by suddenly veering the car to his left; that the front right wheel and fender of the sedan were torn away by violent contact with the right end of the bumper of the truck.

Plaintiff' also alleged that as his car began to negotiate the first curve, another car with bright headlights was approaching from the north, but it is not alleged that the passing of this other car or the brilliance of its lights contributed in any manner to the collision.

It is additionally alleged that the accident happened solely because of the gross negligence of the owner of the track, which consisted in leaving thé vehicle on the highway at the place and in the position above described, and allowing it to remain there (presumably unattended) without flares or other signal to apprise motorists on the highway of its presence as required by Rule 15(a) of the Highway Regulatory Act, No. 286 of 1938, § 3.

The defendant, in support of its position on the exceptions, invoked the general rule that a motorist should never drive his vehicle in the nighttime at a speed so fast that it cannot be stopped within the distance well illumined by its headlights. The cases of Hogue v. Akin Truck Lines, La.App., 16 So.2d 366, and Mickens v. F. Strauss & Son, Inc., La.App., 28 So.2d 84, decided by this court, are cited to sustain its position. The facts of these two cases are in material respects dissimiliar to those alleged in the petition before us. In the Hogue case the accident occurred at night on a straight section of a concrete highway. It was alleged that the offending truck was parked entirely on the paved portion of the highway. It was raining; visibility was poor. The plaintiff was driving rapidly in order to timely reach the place of his employment. The truck was seen only when too close to avoid the collision. The general rule as to the ability to stop a motor vehicle within the distance illumined by its headlights was applied. There were no exceptional facts and circumstances so far as the petition disclosed.

In the Mickens case the facts are that the plaintiff was blinded by the lights of other cars but did not reduce speed nor otherwise bring his car under control so as to successfully cope with the situation that suddenly arose before'him; that is, he was suddenly confronted with the body of a large trailer truck across his side of the highway. It was then too late for him to escape colliding with it. The facts disclosed by the petition-warranted application of the mentioned general rule.

It is well established that the general rule relied upon by defendant is not immune to exceptions. We discussed and commented on cases that are exceptions to the rule in the Hogue case and to some extent in the Mickens case, particularly Gaiennie v. Cooperative Produce Company, Inc., et al., 196 La. 417, 199 So. 377. And more recently, in the case of Rea v. Dow Motor Company, La.App., 36 So.2d 750, this court condemned the defendant in damages on the theory that the facts therein made of that case an exception to the general rule.

In the case at bar the gross negligence of the truck’s owner is beyond question. Rule 15(a) of the cited act provides:

“In no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen (15) feet upon the main traveled portion of said highway opposite such standing vehicle shall be left free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred (200) feet in each direction upon such highway; provided, that if such vehicle is left parked, attended or unattended, one half hour after sunset or one half hour before sunrise, the person stopping it or parking it at that time or place, or causing it to be so stopped or parked or left standing, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence thereat.”

This law was violated in more than one respect when the truck was left on the road.

The truck’s presence on its wrong side of the highway without lights or flares constituted a grave menace to traffic on that side of the highway, and especially is this true when the unusually tortuous course of the highway thereabout is taken into consideration. Because of the several curves in the road thereabout the headlights of a northbound car do not aid a driver in his efforts to see up the highway as would be the case if the road were straight. The lights, instead of focusing up the road, shifted as to direction, from time to time, as the car’s position thereon changed. For this reason the presence of the stationary truck could not be discerned until the sedan was so close to it that a collision could not be averted.

The facts of this case, as alleged, if established by proof, clearly make of it an exception to said general rule.

Of course, as said before, we simply pass on the petition’s sufficiency to disclose a cause or a right of action. It is not our intention or purpose to go beyond this. The alleged facts warrant a trial of the case on the merits.

For the reasons herein assigned, the judgment from which appealed is annulled and set aside, and the case is remanded to the lower court for further proceedings. Costs of appeal are assessed against the defendant. Fixing of liability for all other costs will await final judgment in the case.


author: KENNON, Judge.

text:
    GREEN v. GEORGE et al.
    No. 7227.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.

      Trnctt L. Scarborough, of Ruston, for appellant.
    J. R. Goff, of Arcadia, and Tooke & Tooke, of Shreveport, for appellees.
   KENNON, Judge.

This is a jactitation suit. Plaintiff, alleging himself to be in actual possession of the Southwest Quarter of the Southwest Quarter, Section 7, Township 15 North, Range 6 West, Bienville Parish, Louisiana, and that the named defendants were slandering his title through the recordation of a land deed in which the defendant, Walter L. George, was named as vendee and by virtue of certain mineral deeds in which the other defendants were named as ven-dees, and that the slander of title was being wilfully done with intent to injure plaintiff and to hamper the development of his property for oil, filed this suit praying for $1,000 as damage caused by the effect of the reco.rdations upon the marketability of his title; for $250 attorney’s fees and for a judgment ordering defendants to assert their rights within a time limit to be fixed by the Court, and upon failure to so do that they be perpetually barred from asserting any claims against the property described in the petition.

Defendants in their answer denied plaintiff’s possession of the land described in his petition; admitted the recordation of the instruments described in the petition and asked for judgment against the plaintiff “denying unto him his prayer.”

From a judgment rejecting his demands, plaintiff took an appeal to the Supreme Court of Louisiana. The appeal was transferred to this Court and is now before us.

Since defendants in their answer presented no issue as to title, and admitted the existence and recordation of the instruments described in plaintiff’s petition, the only issue before the Trial Court was whether or not plaintiff was in possession of the property described in his petition.

The uncontradicted evidence in the record is that plaintiff Arch Green went on the property more than fifty years previous to the trial, cleared it, built with his own hands first a log or pole house — replaced some years later by a box or frame house —fenced the land, cultivated it and remained on the land up to, and including the day of the trial below.

Plaintiff testified that the whole forty acres was under cultivation at the time of the trial. His continuous and open possession of the property for more than fifty years was confirmed by the testimony of his near neighbors, both white and colored.

Defendants introduced in evidence a tax adjudication of the property involved to the State of Louisiana and a warranty deed dated in 1907 from the plaintiff to W. P. Lucky et al. and an extract from the assessment rolls for the years 1916, 1926 and 1930, each showing Arch Green to be assessed with movable property, but not with the property described in the petition. In rebuttal, plaintiff introduced a tax redemption deed from the State of Louisiana. Defendant Walter L. George testified that he paid the money for the tax redemption.

Defendants in brief contended that the plaintiff was in possession by “sufferance” through the tolerance of his vendees (in the deed to W. P. Lucky, et al executed in 1907) and their successors in title and that he did not “possess as owner.”

The record shows that after the recordation of the deed from plaintiff to W. P. Lucky et al., plaintiff’s possession of the land continued. He paid no rent and continued to live on the property, he continued to raise his crops and retain all the produce. The record shows that years after the Lucky deed, plaintiff sold the timber to the Bodcaw Lumber Company for the price of $400 and kept all the money. The only evidence of any disturbance of plaintiff’s possession was that of the defendant Walter George, who answered “yes” to the leading question: “Did you ever demand that Arch Green move off the property?” His answers to subsequent questions leaves us in doubt as to whether or not the demand to move was made upon plaintiff in person, but the record is clear that plaintiff kept complete possession of the property. There is no testimony in the record that any of the defendants ever collected any rent, cut any timber or exercised any type of possession upon the property.

We conclude that the plaintiff by a clear preponderance of evidence established that he was, at the time suit was filed, in actual and complete possession of the property described in his petition.

Defendants’ brief further set forth that the plaintiff had executed a warranty deed to W. P. Lucky and sons, ancestors in title of defendants-appellecs, and cites authorities as to the type of possession necessary for vender to acquire title by prescription as against his vendee. These authorities would be relevant had defendants tendered the issue of title in the answer and had there been proof presented of a chain of title from plaintiff’s original vendee to the defendants. However, no issue of title was presented and there is no proof in the record that defendants are successors in title to the vendee named in the 1907 deed to W. P. Lucky, et al.

As stated by the Supreme Court in the case of Siegel v. Helis et al., 186 La. 506, 172 So. 768, the object of a jactitation or slander of title suit is purely and simply to protect possession and not to establish title.

The only possible issues involved in such a suit are the possession of plaintiff and the slander by defendants. The record clearly established the possession by plaintiff and the slander is admitted by defendants. Uuder these circumstances plaintiff is entitled to judgment.

There was no proof in the record to support plaintiff’s claims for damages or attorney’s fees.

For the reasons assigned, the judgment of the District Court is set aside and judgment is now rendered in favor of plaintiff, Arch Green, and against the defendants, Walter L. George, J. R. Goff, J. PI. Poole, Dorothy Jane George, C. E. Tooke, Sr., S. E. Mix and Dee Vanzant, requiring said defendants to institute suit against the plaintiff in revendication of their rights within sixty days after this judgment shall become final and in default of such suit being instituted within the time fixed, that the said defendants be thereafter forever barred from setting up any claims or rights to or against the property described in plaintiff’s petition, and that plaintiff be empowered to cause the Clerk of Court for Bienville Parish, Louisiana to erase from the conveyance records of that parish the instruments described in plaintiff’s petition. Costs to be paid by defendants-appellees.


text:
    DOLLAR et ux. v. ÆTNA CASUALTY & SURETY CO. et al.
    No. 7228.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.

      J. Norman Coon, of Monroe, for appellants.
    Dhu Thompson and Thcus, Grisham, Davis & Leigh, all of Monroe, for appel-lees.
   HARDY, Judge.

This is a suit in which Floyd Dollar and wife, Mrs. Clarice Dollar, seek the recovery of damages, in solido, from several defendants named as Aetna Casualty & Surety Company, Ritchie Grocer Company, Ben Riller and Elston Cook. Exceptions of no cause and no right of action were filed on behalf of each of the defendants and sustained as to all defendants save Elston Cook, with respect to whom the exceptions were overruled. From the judgment sustaining the exceptions and dismissing the plaintiffs’ suit as against the other defendants, plaintiffs have brought this appeal.

The exceptions are based upon the proposition that plaintiffs’ petition not only failed to properly allege acts of negligence on the part of the defendants involved in this appeal, but actually exonerated and absolved them, under the facts alleged, from any negligence whatsoever. The pertinent portions of plaintiffs’ petition which are involved in a determination of the issue before us are found in paragraphs 6 and 7 thereof, which we quote, in extenso, as follows:

“VI. That at about 2:30 p. m. on January 25, 1947, Ben Riller, who had been driving Ritchie Grocer Company Delivery Truck, being one International K 7 Type Truck, Motor Number 444'51, and Registration Number 53-184, in a southerly direction on the Monroe-Sterlington paved highway, parked the same on said highway, mostly on the pavement and partly on the gravel, thus obstructing approximately %th of the width of said pavement; and that McGough’s Store was located on the west side of said highway, about opposite where said truck was parked, which place is in Ouachita Parish, Louisiana; that Ben Riller parked said truck for the purpose of delivering groceries for his employer, Ritchie Grocer Company, to its customer, McGough’s Store; that said highway is about 18 feet in width and that there was a black line running down the center of same; and that as said truck was thus parked, this prevented south bound traffic in the rear of said truck from going around the same, and at the same time remain on the right hand or west side of the highway, because there was not sufficient open and unobstructed space; that soon after said truck was parked, 2 other south bound automobiles stopped in the rear of said truck and that your petitioner Floyd Dollar who was driving his 1941 Chevrolet in a southerly direction had checked the speed of his car and had brought it almost to a stop about 30 feet in the rear of one of the automobiles which had stopped in the rear of said truck; and that while your petitioner’s said car was at said place on his right hand or west side of highway, the front part of his car was struck by right front part of an automobile owned and driven by Elston Cook, which he had been previously driving in a northerly direction on said highway, but lost control of the same and ran across the highway causing the collision; that just prior to the collision another south bound vehicle, the name of the owner and/or driver of same being unknown, the driver of said vehicle being called ‘X’ for identification, and said vehicle being called ‘X-A’ for identification, which vehicle had been driving in the rear of petitioner’s vehicle was by said ‘X’ driven around and passed your petitioner’s vehicle and other automobiles ahead of him, and that about the time the ‘X-A’ vehicle was passing the Ritchie Grocer Company truck, Elston Cook who had been driving his automobile in a northerly direction on said highway, steered the same over to his right or east side and partly on to the shoulder in order to give more room for the ‘X-A’ vehicle to pass through between the Ritchie Grocer Company truck and Elston Cook’s automobile, and that ‘X’ drove ‘X-A’ vehicle on through without any collision; but that as Elston Cook started to get his vehicle back completely on the pavement, lost control of his vehicle and caused it to run across on his left hand, wrong side, or in a westerly direction on said highway, causing the said Cook automobile to be thrown out in front of petitioner’s said automobile, thereby causing the collision.
“VII. Petitioner’s show that said accident was due to the joint and contributory negligence of Ben Riller, driver of Ritchie Grocer Company truck, ‘X’ driver of ‘X-A’ automobile, and Elston Cook, driver of his automobile, and that included in the negligent acts of each are the following acts of negligence, to-wit:
“(a) That Ben Riller was negligent by parking Ritchie Grocer Company truck on said highway, parking so much on the west side of said pavement so as not to leave sufficient room for other south bound traffic to pass said truck and remain on the right hand or west side of said highway, especially since Ben Riller knew or should have known that there was south bound traffic in the rear of said truck, and also knew that there was north bound traffic on said highway, and knew that said highway was greatly used by traffic; and that he was further negligent for not driving said truck off on to the gravel driveway, or roadway in front of McGough’s Store, for the purpose of delivering groceries, that he was further negligent for failing to sound the horn of said truck, which would have warned traffic in both directions of the existing danger created by the parking of said truck in said manner; that he was negligent for failing to station flags or any other signals at proper distances from said truck, which would have warned drivers of other vehicles going in either direction on said highway, and which would have informed other motorists of said danger created by the parking of said truck on said highway; that he was further negligent by failing to have a flagman stationed so as to warn the public of the danger of the parked truck; that Ben Riller was especially negligent for parking the truck on said highway when he knew that there was not left sufficient room on the pavement to the east of said truck in order for north bound and south bound vehicles to pass each other in safety and this is especially true since Ben Riller knew that the shoulder on the east side of said highway was of dirt and boggy from rains; and that Ben Riller was negligent by parking said truck so as not to leave clear and unobstructed a width of IS feet upon the main travelled portion of said highway, opposite said parked truck; and for failing to leave sufficient distance for free passage of other vehicles on said highway.
“(b) That ‘X’ was negligent for driving ‘X-A’ vehicle around petitioner’s automobile and the other automobiles in the rear of Ritchie Grocer Company truck and around Ritchie Grocer Company truck, when he saw or should have seen Elston Cook coming in a northerly direction on said highway, and that ‘X’ was negligent for driving on the left side of the center line of the said highway in undertaking and passing petitioner’s automobile, and other automobiles traveling and/or headed in the same direction, at a time when there was visible to him oncoming traffic, to-wit, Elston Cook who was driving his automobile in an opposite direction, which situation prevented ‘X’ from passing in safety and there being insufficient distance ahead to permit his, ‘X’, overtaking and passing in safety.
“(c) That Elston Cook was negligent by driving his automobile at an excessive and unlawful rate of speed under the circumstances, by his failure to check the speed of his automobile, or his failure to timely check the same, when he saw that ‘X’ was driving his ‘X-A’ automobile in the manner aforementioned, and that had Elston Cook stopped his automobile on his right hand or east side of said highway some distance before it reached the place opposite Ritchie Grocer Company truck that he could have thereby avoided the accident; that also by Elston Cook driving his automobile too fast and not checking the speed of same, he negligently lost control of his automobile when it ran on to the shoulder, and that he was driving so fast that his automobile went a long distance after he passed the ‘X-A’ automobile before he, Cook, finally caused his automobile to run into petitioner’s automobile. Petitioners therefore show that it was the joint and contributory acts of negligence of each of the 3 above named parties that caused the accident in this case, and that petitioners were blameless, and that your petitioner Floyd Dollar was at said time driving his automobile in a careful, cautious, and prudent manner; and that consequently all of the defendants are legally liable in solido for the payment of damages sustained by your petitioners, arising out of said accident.”

Counsel for plaintiffs takes the position that exceptions of no right and no cause of action are properly sustained only in those cases where plaintiff b}' the allegations of his petition evidences his guilt of contributory negligence, and in support of this proposition cites Gerald v. Standard Oil Company of Louisiana, 204 La. 690, 16 So.2d 233. Careful examination of the cited case fails to substantiate the premise advanced. The case reiterates the well established principle that an affirmative showing of contributory negligence in the allegations of a plaintiff’s petition subject him to the raising of the issue by exceptions of no right or cause of action. The opinion emphasizes the point that this constitutes an exception to the general rule that contributory negligence is a special defense. But nowhere in the opinion do we find any pronouncement that such a situation is the only case justifying the sustaining of such exceptions.

It is clear that the issue presented in the case before us deals primarily with the question of proximate cause, not contributory negligence.

In Williams et al. v. Pelican Creamery, Inc., et al., La.App., 30 So.2d 574, decided by our brethren of the First Circuit, we find an interesting and comprehensive discussion with respect to facts and pleading strikingly similar to the instant case. The analysis of the point is brilliantly made in the learned opinion of Judge Dore, with which reasons and the conclusions reached we are in complete accord.

We are convinced that the allegations of plaintiff’s petition conclusively exonerate the driver of the Ritchie truck, and, consequently, the owner and insurer thereof, from any charges of negligence of a nature which would constitute a proximate cause of plaintiffs’ injuries. This being true, it is obvious that the exceptions were properly sustained.

The judgment appealed from is affirmed at appellants’ cost.


author: TALIAFERRO, Judge.

text:
    MITCHELL v. INTERSTATE NATURAL GAS CO., Inc., et al.
    No. 7247.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.

      Sholars & Gu'nby and Kent Brcard, all of Monroe, for appellant.
    Hudson, Potts, Bernstein & Davenport, of Monroe, for appellees.
   TALIAFERRO, Judge.

Plaintiff, an emancipated minor, over the age of eighteen years, sustained serious physical injuries from a collision of the motorcycle he was riding and a truck owned by Interstate Natural Gas Company, Inc., in charge of and then being driven by its agent and employee, T. H. Freeman. The collision occurred at or about the hou'r of four o’clock P. M., May 29, 1947, on the eighteen foot concrete highway that runs easterly from the Town of Sterlington, in Ouachita Parish, in front (north) of the filling station and grocery store of O. G. Crosby. The truck was moving easterly when the collision oc-cured. The motorcycle, after having made at least two circular trips on the gravelled parkway, some sixty feet wide, between the highway and said filling station and grocery store, turned northward and attempted to cross to the north side of the highway in front of the oncoming truck. The collision then happened. The exact position of the vehicles on the highway at the time of the impact is a bitterly contested question of fact. The position of each side on this question will be fully developed and discussed hereinafter.

Plaintiff alleged that after he had passed over the south one-half of the highway and had turned the motorcycle westerly on the north one-half thereof, he saw the approaching truck with its left wheels several feet over (north) the center black line, or on his side of the road, and:

“Immediately after he noticed the truck in this position and discovered the imminence of the danger which threatened him, and before petitioner could do anything to avoid the collision, the truck crashed head-on into the motorcycle, said collision occurring altogether north of the black center line of said highway and to the westward of O. G. Crosby’s Grocery store.”

Plaintiff sued to recover a large amount of damages from the truck’s owner and its insurer, The American Automobile Insurance Company. As a basis for the action the driver of the truck is charged with negligence in the following respects, to-wit:

Failing to keep a proper lookout for traffic on the highway and failing to see plaintiff and the motorcycle in plain view, whose movements should have been and could have been observed by him when several hundred yards from the point of collision; leaving his traffic lane and crossing over and upon that of plaintiff and not returning thereto in time to prevent the collision; in not driving carefully and prudently under prevailing circumstances; driving at an excessive rate of speed and not having his vehicle under control. Each of the said acts of negligence is alleged to be a proximate cause of the collision.

Defendants admit the happening of the accident at the time alleged and that Freeman, the driver of the truck, was then an employee of the gas company and was on a mission for his employer, but liability in damages to plaintiff to any extent on account of his injuries is denied, as well as all allegations charging Freeman with negligence in connection with the collision.

Further answering, defendants aver that Freeman, as he proceeded along the concrete highway easterly at a lawful and prudent rate of speed, on his proper side thereof, west of Crosby’s grocery store, observed a person on a motorcycle riding it in circles upon the gravelled parkway between the store and the highway; that the rider while executing said circular movements did not go upon or very close to the highway, and, therefore, his movements did not portend the perilous situation that soon thereafter suddenly arose; that as plaintiff terminated the last circular trip on said parkway he suddenly turned the motorcycle toward the north and without, at least for his own safety, taking time to observe traffic conditions upon the highway, drove thereupon at right angles to and in front of the truck; that because of this precipitous action and the short distance intervening between the motorcycle and the truck, the collision was inevitable, although Freeman endeavored to avert it by quickly veering the truck’s course northeasterly; that after this effort was made, in fact, almost simultaneously therewith, the collision occurred; that plaintiff was catapulted from the motorcycle in a northeasterly direction and actual contact between the vehicles was made by the right fender of the truck striking the other vehicle about midway; that the unfortunate accident happened solely because plaintiff, without due regard for his own safety and that of others then rightfully driving on said highway, imprudently left a place of safety to enter upon one of extreme peril and danger; that Freeman had no reason whatever to anticipate that the rider of the motorcycle would act as he did, and thus bring about the emergency situation to which in no wise did the truck’s driver contribute.

In the alternative, defendants plead the contributory negligence of plaintiff against any right he might otherwise have to recover herein. His negligent acts, reflected from the foregoing paraphrase of the answer, and others set forth therein, are employed as a basis for this special defense.

The testimony in the case covers three hundred pages. At the conclusion of the trial the learned judge, without further ado, rendered judgment rejecting plaintiff’s demand. Prior to doing so he dictated into the record a lucid analysis of the testimony of the several witnesses introduced by each side, and, in our opinion, manifestly resolved correctly the factual issues tendered. Plaintiff appealed.

We are favored with voluminous briefs of both sides. The facts of the case were elaborately developed below and are in like manner discussed and analyzed in briefs.

Plaintiff borrowed the motorcycle from a young man at a cafe one-half mile west of the Crosby store, and promised to return it after a brief time.'' He drove it over the highway directly to the parkway mentioned where his own automobile was parked, beside which, at the time, Melvin T. Fowler, his uncle, was standing. He circled by Fowler and said something to him, but realizing that he was not understood, he completed the circle, again drove by Fowler and again addressed some words to him, and then proceeded toward the highway. His speed was increased as he drew near to it. He was on his way to return the motorcycle. The exact spot where he drove upon the pavement is fixed with certainty. As shall be disclosed further on in this opinion, the certainty of location of this spot is a very important fact in the case. Plaintiff and Fowler agree that plaintiff drove upon the pavement at a place where it had been patched (on south side) with an asphaltic mixture that tapered to the shoulder.

Plaintiff’s version of the facts of the accident follow: When about fifteen feet from the highway he looked in both directions for traffic and saw none to his right. He did observe defendant’s truck, coming at an estimated speed of thirty-five miles per hour, one hundred fifty or two hundred feet away; that he drove forward and succeeded in crossing to the north traffic lane, had “straightened out” thereon, and had traveled twenty-five or thirty feet westerly when suddenly the truck veered to its left and partially upon his lane; that the collision then occurred and head-on. We quote, in part, his testimony on this phase of -the case:

“ * * * so I opened the throttle up and got on over across the black line and had straightened up and my carbureter stopped up on me, so the motor choked down and I reached down with my left hand to pull the choke up on it, and when I looked up the next time Freeman’s truck was so close in front of me that I couldn’t dodge him. I couldn’t stop and get around him any way; he whirled over in front of me or into my lane of the highway, and that’s all I can remember about the accident.”

Plaintiff is positive both left wheels of the truck were north of the black line when the collision happened.

The only eye witness to the accident who gave testimony favorable to plaintiff’s contentions was Mr. Fowler, his uncle. His testimony corroborates that given by plaintiff in nearly all material respects. He says that when plaintiff had “straightened out” on the north lane, the truck was about one hundred feet distant and “when all at once the truck whipped over to the left hand side of the road * * * and it hit the motorcycle when it whipped over.” Again, he says: “He made an almost sudden dash to the left of the road”; and, finally, he testified: “He made the whirl to the left.” He estimated that plaintiff had gone fifteen feet, after “straightening out” when the vehicles met; that while covering this distance the truck covered one hundred feet; and that the collision was head-on, at which time the truck was midway over the black line.

In the truck with Freeman were Lloyd Gilcrease, Jr., and J. C. Miller, employees of the gas company, both of whom gave testimony favorable to defendants as concerns the accident. In addition to these witnesses, Leon Barnett, who was at the time having his car serviced at Crosby’s station, appeared as a witness for the defendants. He was looking directly at the vehicles immediately prior to and when they came together. The testimony of these three witnesses and that of Freeman, in substance and largely in detail, is to the same effect, to-wit: That plaintiff, • immediately prior to entering upon the highway at the asphaltic patch, increased the speed of his vehicle and drove upon the pavement without looking in either direction; that when he did this, the truck on its proper side of the road, going at a moderate rate of speed, was within a few feet of him; that it was at this juncture that Freeman suddenly veered the truck’s course to its left and collided with the motorcycle, almost broad-side, on the center line or just south of it.

There is an abundance of circumstantial evidence (physical) to support defendants’ theory of the accident. The lower court attached much importance to this evidence, and properly so. The truck suffered no damage save to its right fender and headlight. This surely indicates that the truck was not going straight forward when it contacted the motorcycle but at a slight angle toward the north. In such position we would expect the right front end to first come in contact with the other vehicle; and this physical fact also supports the theory that the collision was not head-on as testified to by plaintiff and Fowler, but nearly broadside. A state trooper who arrived at the scene within a few minutes after the collision, found small clods of dirt south of the black line and traced the tracks of the truck from this dirt to where it rested on the north side of the highway, some forty feet from the clods. This dirt, it is reasoned, fell from the under side of the fender at time of impact. The trial judge was favorably impressed with the trooper’s testimony.

In opposition to the contention that the collision was head-on, it is pointed out that when the truck rested, the motorcycle was beneath the right end of the front axle and scars on the pavement, caused from the wrecked machine being pushed by the truck’s forward movement, led from close to the clods to the end of the tangent covered by the truck after the collision.

Had the accident happened where plaintiff and Fowler say it did, the truck, after the impact, traveled seventy-five feet instead of forty, but there was no deposit of clods, nor scrapings on the concrete at the locus of the impact as fixed by them.

It is not seriously questioned that plaintiff’s body landed on the 'highway or the shoulder approximately fifteen feet from the site of the collision. It is shown that the body was approximately this distance northeast of a projected line across said patch to the north side of the highway. All of the circumstantial evidence and relevant physical facts definitely fix the locus of the collision on or east of this line.

Plaintiff’s energetic counsel plausibly argue from estimates of distance’s and locations which witnesses attempt to fix, that the truck was seventy-seven feet distant from the motorcycle when it entered upon the highway, and that going at a speed of about twenty-five miles per hour it could and should have been stopped prior to colliding with the motorcycle or its course altered in time to avoid doing so. The fallacy of the argument becomes apparent when the premise upon which it is based is properly appraised. It is also in conflict with the overwhelming preponderance of the testimony that bears upon the relative positions of the vehicles when plaintiff rode upon the highway and thereafter.

No reason has been suggested, and we believe none can be shown, why Freeman would have wilfully veered the truck from its proper side of the road and upon that of plaintiff when at the distance from the motorcycle plaintiff and Fowler say it was when the sudden movement occurred. It is certain Freeman had been driving prudently and was keeping his eyes upon the highway. The road’s surface was dry; the weather was fair. To do as Freeman is charged, implies the grossest carelessness on his part or a purpose to injure or kill himself and/or others. Every presumption repels such an implication. Fie did suddenly veer the truck and for good cause, but not at the time and place plaintiff contends.

Plaintiff advances the contention that from the time Freeman, when several hundred feet away, saw plaintiff riding in circles in front of the Crosby store, he should have mantained close watch upon him and his movements from then on, and kept the truck under such control that an accident would not happen should plaintiff do the unexpected, as he did do. The rule involved in this position has application when the presence of small chldren upon or near the side of a highway is discovered by a motorist thereon, but it does not apply when adults, so situated, are seen. A motorist has the right to assume that adults will act sensibly, with • due regard for their own interest and will not attempt to cross over a heavily traveled highway without first ascertaining if traffic conditions justify such action. Plaintiff failed to observe the old and fundamental rule, applicable to pedestrians: stop, look and listen, before undertaking to cross a highway, and to this omission of duty may be solely accredited the accident out of which he luckily emerged with his life. As to Freeman, it was unavoidable. After he realized that plaintiff had ceased his circular movements and intended to cross the highway it was then too late to maneuver the heavy truck other than was done in the hope of averting the impending collision.

The established facts of the case repel application of the doctrine of the last clear chance advanced by plaintiff in brief.

For the reasons herein assigned, the judgment from which appealed, is affirmed with costs.