author: LE BLANC, Judge.

text:
    PATIN et al. v. T. L. JAMES & CO., Inc. et al.
    No. 3082.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    Ashton L. Stewart, of Baton Rouge, for appellants.
    Huckabay, Seale & Kelton, of Baton Rouge, for appellees.
   LE BLANC, Judge.

This case presents the identical question that was passed on by this court in the recent case of Moore v. Capital Glass and Supply Company, La.App., 25 So.2d 248. The issue involved concerns the right of a woman who was living with a man to whom she never was married, to recover compensation from his employer after his death which was caused by a compensable accident. There was involved also a claim on behalf of a minor but apparently that question is not before us at this time as the appeal was not taken from that part of the judgment of the lower court dismissing the same.

Counsel for plaintiff concede, in argument and in brief that if the decision of this court in the Moore case is correct, the woman’s claim here is barred. They strenuously urge however that in the Moore case no consideration was given to the question which they now raise regarding the difference between two persons living together in open concubinage and those same persons living together in a concubinage which is not open, but in effect, secret. They point out that in the Moore case the opinion refers to -the parties having lived together in “open concubinage” and for that reason the claimant was held to be excepted from the rule of the family doctrine on the ground of public policy. They then urge that when a man and woman live together as husband and wife and hold themselves out to the public as such that that is not “open concubinage”, the only kind of concubinage that is denounced by our law as being against public.morals and public policy.

In support of the contention they make, counsel for plaintiff rely on a decision of the Supreme Court in the case of Succession of Lannes, reported in 187 La. 17, 174 So. 94.

The issue in that case related to the right of a man to make a donation to his concubine, which is prohibited under the terms of art. 1481 of the Revised Civil Code except to the extent mentioned therein. The decision was by a divided court, four of the justices being on the majority side and three on the minority. From a foot-note in the opinion reported in 187 La. at page 17, 174 So. at page 94, it is made to appear that because of the division of the Court and the retirement of one of the justices before the decision became final, a re-hearing ipso facto resulted and that whilst the case was thus, pending, it was compromised.

Under the circumstances and also in view of the difference of the issue that was presented in the Moore case, and in the present case we are not disposed to change our views as expressed in the Moore case especially since a writ was applied for in that case and was refused by the Supreme Court with the notation that “the judgment is correct.” Moreover, we think that there is considerable and respectable authority cited in the case which supports the decision rendered.

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


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    ERIE v. PRIMOS.
    No. 19172.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied March 28, 1949.
    See also 37 So.2d 832.
    J. L. Warren Woodville, of New Orleans, for plaintiff and appellee.
    George Sladovich, Jr., of New Orleans, for defendant and appellant.
   JANVIER, Judge.

At about 11:35 o’clock on the morning of June 18th, 1948, there was an automobile collision at the corner of Delachaise Street and St. Charles Avenue in New Orleans. This suit is the result. The automobiles involved were a Buick belonging to and driven by plaintiff, George Erie, which was on its way downtown on St. Charles Avenue, and a Nash Convertible owned and driven by defendant, Andrew Kenneth Primos, who, going uptown on St. Charles Avenue, had turned to his left at Dela-chaise Street and intended to cross the riverside driveway of St. Charles Avenue on which the Buick of plaintiff was approaching.

Erie alleges that the collision resulted from negligence of Primos in that he attempted to emerge from the neutral ground and to cross the river side driveway of St. Charles Avenue without bringing his Nash to a stop and sounding his horn, and making certain that it was safe for him to cross. He avers that the repairs to his Buick cost $158.62, and that while it was being repaired he found it necessary to rent a truck in conducting his business, and that he expended $81.25 in rental of this truck. He prays for judgment for the sum of these two amounts alleging that sum to be $238.87. In truth it is $239.87.

Defendant, Primos, admits the occurrence of the accident, but denies that he was in any way at fault, averring that before attempting to cross St. Charles Avenue he brought his car to a full stop on the car tracks and sounded his horn. He avers also that in order to clear the lake side street car track on the neutral ground of St. Charles Avenue, he permitted the front of his car to protrude about two or three feet into the downtown roadway of the avenue and that while it was standing motionless in that position it was struck by the car of plaintiff. He did not reconvene for the damage sustained by his car, but averred that it amounted to $700.00, and prayed for a reservation of his rights to file a separate action for the damage so sustained.

After a trial below there was judgment for plaintiff, as prayed for, for $238:87, and defendant has appealed.

The evidence is sharply in conflict. Plaintiff himself and one other witness, Harold J. Trepagnier, testified in support of plaintiff’s claim, whereas the defendant, Primos, and Mrs. Peter Centanni gave a contrary version of the occurrence. Plaintiff says that as he was driving down the avenue he reduced the speed of his car as it was about to approach Delachaise Street because he could see that the traffic signal light at Louisiana Avenue, one block below Delachaise Street, was about to change to red. He says that he could see that no vehicle was crossing the avenue in either direction at Delachaise Street and that just as he was about to reach the intersection, defendant’s car suddenly turned to its left, crossed the neutral ground and, without coming to a stop, crashed into the left front of his, plaintiff’s Buick. Trepagnier, who was on the front porch of a residence on the lower lake corner, said that he was attracted by the remarkable color of Prim-os’ car; that it was obviously painted with gold paint to attract attention, and that he focused his attention on it while it was still some distance from the corner. He says that as it reached the corner Primos suddenly turned to the left to cross the neutral ground and, without stopping, crashed into the side of plaintiff’s car.

Defendant Primos and Mrs. Centanni both say that Primos brought his car to a stop and sounded his horn while it was standing almost entirely on the neutral ground but with its front protruding a few feet into the roadway.

We are not at all impressed with the testimony of Primos or his supporting witness. The physical facts show conclusively that his car crashed into the side of plaintiff’s car. It is true that there was some damage to the radiator of plaintiff’s car and to the left front headlight but the evidence shows that this was caused by a blow which that car sustained from the side and not by its having crashed heacllong into the other car.

We believe that defendant himself realized that he was in error because the evidence convinces us that after the occurrence he gave one of his cards to plaintiff and wrote on it the address of a garage which had done repair work for him. And we believe that the evidence also shows that he did not deny responsibility but, on the contrary, told plaintiff to take his car to that garage and to have an estimate of the damage made there.

We feel it unnecessary to discuss the testimony in detail and merely say that it overwhelmingly supports the conclusion reached by the trial judge that the sole cause of the accident was the fact that Primos attempted to emerge from the neutral ground without stopping, without sounding his horn, and just as plaintiff’s car was about to pass in front of him.

Defendant relies almost entirely on the City Traffic Ordinance, No. 13702, Art. VI, 10(b), which reads as follows:

“(b) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right-of-way to complete the crossing of the roadway of such street or avenue under the following conditions :
“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop, it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway.”

It is true that under that provision a motorist crossing such a neutral ground may stop on the neutral ground, sound his horn, and then proceed when the other vehicles have stopped and afforded him an opportunity to cross. As we have already said, it is true that the ordinance so provides, but we doubt the advisability of relying upon its provisions, and our own observation indicates that motorists on the thoroughfare pay no attention to it whatever. At any rate, before an operator of such a vehicle may continue crossing the stréet, he must bring the car to a stop and must sound his horn, and Primos did not do so.

The proof as to cost of the repairs is conclusive, and we also find that the plaintiff has shown that he expended the amount claimed in the rental of the truck which was necessary in the conduct of his business.

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

Affirmed.


author: DORE, Judge,

text:
    CAMPBELL et al. v. NEW AMSTERDAM CASUALTY CO.
    No. 3098.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Dalton J. Barranger, of Covington, for appellants.
    Henriques & Mayo, of New Orleans, and Banj. W. Miller, of Bogalusa, for appellee.
   DORE, Judge,

On August 6, 1946, at about 7:30 A. M., a collision occurred on the south lane of travel of Louisiana Avenue, which avenue runs east and west, and its intersection thereof by Highway No. 7 (also known as the Varnado Highway) which highway runs north and south, between a Ford automobile being driven and owned by D. W. O’Quinn, in a southerly direction on said highway No. 7, and a 1946 Chevrolet automobile owned by Bogalusa Lumber Company, Inc., and being driven easterly on Louisiana Avenue by its employee, Orion H. Campbell, in the course and scope of his employment. As a result of the accident, Orion H. Campbell sustained injuries from which he died some three hours later, and, although there is no claim therefor, it appears that Mrs. D. W. O’Quinn, who was accompanying her husband, also died from injuries sustained in this accident. It is also shown that D. W. O’Quinn suffered bruises and other minor injuries which are not involved in this case, since no claim is made therefor, and that both vehicles were badly damaged. As a result of the collision this suit was filed on behalf of the widow and minor son of the deceased, Orion H. Campbell, for damages against the New Amsterdam Casualty Company, insurer of D. W. O’Quinn, alleging that the accident and resultant death of Orion H. Campbell were caused solely by the gross negligence of said D. W. O’Quinn; particularly that he was driving his automobile upon the highway carelessly and heedlessly in wilful and wanton disregard of the rights and safety of others; that he was travelling at an excessive rate of speed; that he failed to stop before entering Louisiana Avenue, a right-of-way street under the law^ of the City of Bogalusa; that he failed to' keep a proper lookout and to observe the automobile driven by Orion H. Campbell, on Louisiana Avenue; that he failed to see, as he should have seen, the automobile driven by Orion H. Campbell; that he failed to stop after he saw, or should have seen the automobile driven by said Orion H. Campbell; that he failed to make any attempt to stop or otherwise avoid the accident; that he saw or should have seen the automobile driven by Orion H. Campbell.

It is further alleged that in consequence of this accident and resultant death of Orion H. Campbell, petitioner, The Boga-lusa Lumber Company, Inc., and, in turn, Consolidated Underwriters, by virtue of its policy of employers liability insurance issued to said Bogalusa Insurance Company, Inc., became liable for compensation for medical, hospital and funeral expenses to the said widow and minor child, and said Bogalusa Lumber Company, Inc., has sustained damages tó its automobile, and that these two parties should receive, by preference, the respective amounts of damage ■sustained by them in the accident.

The defendant, in its answer, admitted that the accident occurred and that as a result that the said Orion H. Campbell was injured and that he died from said injuries as alleged. It further admitted .that the ■deceased, Orion H. Campbell, was operating in the course and scope of his employment. It further admitted that it was the insurer of D. W. O’Quinn, with a limited liability. The defendant, however, vigorously denies that its assured, D. W. O’Quinn, was in any way guilty of negligence causing the collision, and avers that the collision was caused solely by the gross negligence of Orion H. Campbell, particu-. larly in driving at an excessive rate of speed, failing to keep a proper lookout for traffic, in running .into the automobile of D. W. O’Quinn after the south lane of Louisiana Avenue had been preempted by said D. W. O’Quinn. In the alternative, defendant pleads that even if negligence on the part of its assured, D. W. O’Quinn, should be found, which is denied, then and in that event, the deceased, Orion H. Campbell, was' guilty of negligence which contributed to the collision, which bars recovery in this suit. The defendant alleges that its assured, D. W. O’Quinn, had preempted the south lane of Louisiana Avenue in that he was % across said avenue at •the time he was run into by the 'Campbell car.

The trial court, in accordance with written reasons assigned, came to the conclusion that the Ford car driven by O’Quinn had traversed the north lane of traffic on Louisiana Avenue, as well as that part of the intersection adjacent to the neutral ground, and had gotten half way across the south lane of Louisiana Avenue, at the time ■the Ford car was hit by the Campbell Chevrolet automobile driven by Mr. Campbell. He concludes, further, that the impact took place at approximately the center of the south lane of Louisiana Avenue, and that the Ford not only preempted the intersection of Louisiana Avenue, but also entered the south lane thereof prior to the entrance of the Chevrolet car driven by the deceased, Mr. Campbell, and that therefore under the circumstances he finds that Mr. Campbell failed to keep a proper lookout and was therefore guilty of contributory negligence which bars, recovery of the plaintiffs herein. Accordingly he rendered judgment in favor of the. defendant, the New Amsterdam Consolidated Company, and against the plaintiffs herein, dismissing their suit at their costs. Plaintiffs have appealed.

Before this Court, of course, the only question to consider is whether or not the trial judge committed any manifest error in his finding of fact from the evid'ence that the deceased, Orion H. Campbell, was guilty of any negligence which contributed to the traffic accident in which he met his death. On that all important question, we have the following testimony:

The only eyewitnesses to the accident, according to the record, were Mr. and Mrs. D. W. O’Quinn, who were travelling on the Varnado Road in the Ford automobile, Mr. Campbell driving in the Chevrolet automobile on Louisiana Avenue, and a colored man by the name of Dewey Brumfield, who was engaged in. construction work near the southwest corner of these two streets. The lips of Mrs. O’Quinn and Mr. Campbell were sealed in death, hence the only eyewitnesses’ testimony is that of Mr. O’Quinn and of Dewey Brumfield.

With reference to Dewey Brumfield’s testimony, the trial judge in his written reasons states:

“The only other eye witness to the accident was one Dewey Brumfield, who was working .close to the intersection of these two streets, and his testimony shows that the Ford car, driven by O’Quinn, failed to stop at the intersection and was traveling at a rate of speed of thirty-five (35) to forty (40) miles per hour when it struck the Chevrolet automobile driven by Mr. Campbell. There is a statement in the record, which was signed by Dewey Brum-field and given to the Insurance Adjuster, to the effect that he was not looking at the automobiles immediately prior to the accident, because he was engrossed in his work and that the crash of the cars attracted hi? attention. Of course, the testimony oi Brumfield is at variance with the statement he gave to the Insurance Adjuster. If the crash of the two automobiles is what attracted his attention, he certainly could not have known the speed of the Ford automobile immediately prior to the accident, nor could he have known that the Ford car ran into the Chevrolet car. I am of the opinion that Mr. Brumfield was not paying any attention to the cars immediately prior to the accident, for the very obvious reason that the pictures which have been introduced in evidence unmistakably show that the Chevrolet automobile driven by Mr. Campbell‘actually ran into the Ford car driven by O’Quinn, rather than the Ford car of O’Quinn running into the Chevrolet being driven by Campbell, as testified to by Brum-field. Thus, the only evidence which the court can consider in reaching a decision in this case is the testimony of O’Quinn, plus the physical facts.”

After careful review of the testimony of this witness, we are in full accord with the trial judge’s conclusion.

Mr. O’Quinn testifies that he is a man 69 years of age and had been driving an automobile for many years prior to' the accident; that he was driving south on Varna-do Road (Highway 7) for the second time in his life, and with the intention of turning west on his way to Texas; that when he reached the outskirts of the City of Bogalusa, he slowed down to a rate of speed of about 15 miles per hour and that he, upon reaching Louisiana Avenue, looked to the left and to the right, and seeing no traffic, proceeded to cross Louisiana Avenue at the same speed, and as he reached approximately the center of the south lane, he was struck by the car driven by Campbell on his left side, approximately in the center thereof. According to the map introduced herein, Louisiana Avenue has an over-all width of approximately 100 feet, with ditches on both sides, and a neutral ground between the north lane and the south lane 30 feet wide, and that each lane is paved approximately 14 feet wide, with shoulders of approximately 15 feet. According to the photographs showing Louisiana Avenue and Varnado Highway there are no obstructions at' the intersection wherein the collision occurred which would prevent a car from seeing traffic from any direction.

In view of these facts, and the further fact that the witness, Mr. O’Quinn, admits-that he was intent upon finding some traffic-sign indicating where he was supposed to-turn to proceed on his westward journey, it is apparent that he was guilty of negligence, and his negligence is practically conceded in this court. He should have-seen the Campbell car approaching if he-had been keeping a proper lookout. Nevertheless, the fact remains that he had preempted the south lane of Louisiana Avenue-when he was run into by the Campbell car, and the question arises as to whether or not Mr. Campbell was guilty of contributory negligence in that he apparently failed; to observe the maneuver of the O’Quinn, car until too late to prevent the crash. It seems apparent from the photographs and. other evidence of the situs of the accident that Mr. Campbell could easily have seen Mr. O’Quinn’s car as he crossed the north lane of Louisiana Avenue, the neutral' ground, and as he entered the south lane,, and that apparently he never slowed down, but relied on the fact that had the right-of-way and that when he finally realized that the O’Quinn car had entered the south lane,, it was too late for him to avoid crashing; into it.

Under the facts as herein reviewed, he-must conclude that there is no manifest error in the findings of the District Court to the effect that the deceased, Mr. Campbell, was guilty of contributory negligence,, and we therefore affirm the judgment.


author: LeBLANC, Judge.

text:
    HORNSBY v. LE BLANC et al.
    No. 3085.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Franz Joseph Baddock, -of Baton Rouge, for appellant.
    Hirsch & Greene, of Baton Rouge, for appellee.
   LeBLANC, Judge.

This is a suit filed by a minor above the age of. fifteen years, but duly emancipated by notarial act, who claims that he has been endeavoring to secure employment and earn his livelihood through the trade or occupation which is known in the construction industry as that of plastering, but that he has been deprived, in every effort he made towards that end, by the two named defendants, Paul LeBlanc and Charles Spencer, who have constantly and repeatedly had him dismissed from every job he had secured. He distinctly names these two defendants as being respectively the business agent and the president of Local No. 483 of the Operators Plasterers’ and Cement Finishers’ International Association of the United States and Canada, which Local 483 operates in the area of the Parish of East Baton Rouge.

He alleges that he came to East Baton Rouge Parish at the beginning of the year 1947 in order to pursue the trade of a plasterer and that he made every effort possible to become a member of the local of the named trade union but that the two defendants refused to admit him on the ground that the Constitution of the Union’s International Association provided that no applicant for membership could be initiated into any local until he had completed his full term of apprenticeship to the trade, said term of apprenticeship being for a period of four years or three years and six months within the discretion of the local receiving the application.

Fie then alleges that he made every effort to become a registered plaster apprentice under the provisions of Act No. 364 of 1938 but that the defendants, with a malicious intent, directed all their efforts as members of the Local Joint Apprenticeship Committee, towards defeating, blocking and refusing to permit him to become a registered plaster apprentice under the provisions of that act.

He then sets out that in three different instances he applied for a job and was employed, but that in each instance, although none involved a closed-shop agreement between the local union and the employer, through the efforts of the said defendants, he lost his job and was unable to earn his livelihood as he had a right to do.

Finally he alleges that because of the actions of the defendants as set out in various paragraphs of his petition, he has suffered (and here we quote from his petition): “mental pain, anguish, worry and vexation; that his opportunity to establish himself as a permanent employee of the Pittman Construction Company, Inc., (one of the construction companies which had employed him) has in effect been destroyed; that he has lost the opportunity of securing wages for approximately one and one-half years; that his right of pursuing a trade or occupation of his own choosing has been severely damaged; that his right to pursue said trade or occupation of his own choosing in East Baton Rouge Parish, Louisiana, has been completely destroyed.” The prayer of his petition, after asking for service of citation, is that “there be judgment in favor of plaintiff, and against the defendants, for a sum equal in amount to the damages suffered by plaintiff because of the wrongful action of the defendants, which amount of damages plaintiff respectfully suggests to the court as” and then follows an itemization of the damages suggested. These are $2000 for mental pain, anguish, worry and vexation; $6000 for loss of opportunity to become a permanent employee of the Pittman Construction Company, Inc.; $3000 loss of wages for one and one-half years; $6000 damages to his right to pursue a trade or occupation of his own choosing and $3000 for destruction of his right to pursue that trade in East Baton Rouge Parish. The total amount is therefore the sum of $20,000.

The juridiction of the Courts of Appeal in this State is fixed by Section 29 of Article 7 of the Constitution of 1921 wherein it is stated that, “except as otherwise provided in this Constitution, * * * jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction regardless of the amount involved, or concurrent jurisdiction exceeding one hundred dollars, exclusive of interest, and of which the Supreme Court is not given jurisdiction, except as otherwise provided in this Constitution * * (Italics ours.) Referring now to the jurisdiction of the Supreme Court which is provided for in Section 10 of Article 7 of the Constitution, it is noted that that court, “shall have appellate jurisdiction in civil suits where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed two thousand dollars exclusive of interest, except in suits for damages for physical injuries to, or for the death of a person or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances; nor shall such appellate jurisdiction extend to any suit for compensation under any State or Federal Workmen’s compensation law, or employer’s liability act; * * (Italics ours.)

In reading the allegations and the prayer of plaintiff’s petition in this case, we are at once struck with the thought that his suit is definitely not one for damages for physical injuries or for other damages sustained by him arising out of any such circumstances, nor is it one for compensation under any Workmen’s Compensation Law or employer’s liability act, and his demand being for the total sum of $20,000, the question of jurisdiction is one which naturally arises. There was no motion filed to dismiss on the ground of lack of jurisdiction of this court but it is clear that under the settled jurisprudence, that is a question which the court can raise ex proprio motu. The matter was called to the attention of counsel during oral argument and it was suggested that it might be discussed in supplemental briefs to be filed later.

In his brief, counsel for plaintiff brushes aside the whole question of jurisdiction with the statement that the petition does not demand damages in excess of $2000 but only suggests that as the criterion for decreeing damages in excess of that amount.

We do not find any merit in the argument that plaintiff is merely suggesting. an amount of damages and has not demanded in excess of $2000. We are wondering exactly what is meant by that. If he is not demanding damages in excess of $2000, what damages is he demanding? If he does not intend to press his demand for an amount in excess of $2000 why doesn’t he ■enter a remittitur for all that is in excess of that amount? When he says that he is merely suggesting an amount as a criterion for awarding damages in excess of $2000 it strikes us that he is still demanding an amount that is in excess of that amount, or ■else why did he suggest such a large •amount? Pursuing that line of argument further, it may as well be said that either he is asking for $20,000 or is not demanding anything at all. The whole tenor of his petition, however, is that he has suffered damages and his purpose in filing suit therefore must be to recover the damages; and since he suggests $20,000 as the amount, that must necessarily be the amount he is attempting to recover. We cannot view his petition and prayer as anything but a demand to obtain a judgment against the defendant in the total sum of $20,000, and viewed as such, considering the nature of the damages alleged to have been suffered, this court is without jurisdiction to entertain the same.

Counsel also intimates in his brief that in deciding the question of jurisdiction in respect to the amount that is in dispute in damage suits not for personal injuries, it must conclusively appear that the amount claimed actually exceeds $2000. Here we say again if the point he is trying to make is that the damages he has suggested are inflated, why doesn’t he admit it and enter a remittitur for the amount that is claimed in excess of $2000? On the other hand, conceding that the court itself has the right to consider the question of whether or not the damages claimed are inflated, certainly by reading the plaintiff’s petition we would not be inclined to say that he has asked for anything that is unreasonable because these defendants are charged with actions that ■certainly could force them to answer for rather substantial damages, assuming, of course, that they could be proved on the trial of the case.

We are of the opinion therefore that this court is without jurisdiction of this case and that the appeal should have been to the Supreme Court.

For the reasons stated, it is therefore ordered that, in accordance with the provisions of Act No. 19 of 1912, the appeal in this case be transferred to the Supreme Court, within sixty days from the finality of this decree, otherwise, the appeal to stand dismissed.


author: ELLIS, Judge.

text:
    NEW ZION BAPTIST CHURCH et al. v. STRAIN et ux.
    No. 3080.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.

      Richard Kilbourne, of Clinton, for 'appellants.
    Woodrow Overton, of Clinton, for ap-pellees.
   ELLIS, Judge.

This is a possessory action filed by members of an unincorporated religious society, known as the New Zion Baptist Church. The petitioners set forth that the New Zion Baptist Church is the owner of one acre of land with improvements thereon, in the Sixth Ward of the Parish of East Felici-ana, State of Louisiana, having acquired this property by purchase from one Laurence Odom on June 4, 1946, as per deed in Book U-2, Folio 537-538; that there is located on this land the church building of plaintiffs’ unincorporated religious society which is known as New Zion Baptist Church; that on or about July 24, 1948 the defendants, Roy Strain and Mrs. Roy Strain, pretending to be the owners of the property disturbed petitioners’ possession by themselves taking possession of the church building and placing a padlock on the door and forbidding petitioners the use of the church. It is also alleged in the petition that the defendants threatened to tear down the petitioners’ church building and remove same. The petitioners then allege that they had the real and actual possession of the property at the time the disturbance occurred and that they have had possession thereof, quietly and without interruption, by virtue of their title, for more than one year previous to their being disturbed; that due to the acts of the defendants, the petitioners have suffered a real disturbance in fact, and that less than one year has elapsed since the disturbance occurred. 'The petitioners therefore pray for judgment in their favor and against the defendants, restoring to the petitioners the possession of the said property and maintaining them in their possession thereafter and quieting same.

The defendants deny the material allegations of plaintiffs’ petition and allege that they were the bona fide purchasers of the New Zion Baptist Chuch property, which sale took place on the 17th day of July, 1948, and is duly recorded in Book Y-2y Folio 610 of the records of the Parish of East Feliciana. Defendants specifically admit that they took possession of the church and placed a padlock upon it but deny that they forbid anyone worshiping in this church.

The case was duly tried and judgment, with written reasons therefor, was rendered in favor of the defendants and against the plaintiffs, dismissing their suit at their cost, whereupon the plaintiffs secured an order for suspensive and devolutive appeal and perfected same to this Court.

The facts in the case are very simple. In September, 1947, a dispute arose among the members of the New Zion Baptist Church as to’ whether Laurence Odom, one of the plaintiffs, or O. L. Smith was the duly elected pastor of this church. On September 27, 1947, O. L. Smith was notified by some of the members of the church that he had been elected pastor and they requested that he come and take charge of his duties. He appeared and together with some of his supporters went to the New Zion Baptist Church, whereupon they were opposed by some of the supporters of Laurence Odom who refused to allow O. L. Smith and his supporters to go into the church. Apparently there were some heated words and, as a result, two of Odom’s supporters, Irene McVea and Josie Lea Washington, who are also plaintiffs in the present suit, were tried and convicted on a criminal charge of disturbing the peace. Smith and his followers withdrew without making any attempt to wrest the control and possession of the church from Odom and his followers. However, from that date they withdrew from the church and later built their own church at a new location which they called the Greater New Zion Church.

The members of the Greater New Zion Church and followers of Rev. O. L. Smith sold or purported to sell the property in dispute to the defendants, Roy Strain and Mrs. Roy Strain. Mr. and Mrs. Strain are members of the white race while the other parties involved are members of the colored race. The defendants then took possession of this church premises by locking the church door and suggesting to the plaintiffs that they discontinue the use of the church house. These colored people treated the suggestion as a command.

The District Judge; in his reasons,-found that petitioners had proven all facts necessary to sustain their cause of action and to -entitle them to the relief prayed for except one and that was to the effect that they Tiad failed to prove one of the essential elements of this possessory action in that they had not “been in quiet possession of the property disturbed for one year preceding the overt act complained of. The word ‘‘■quiet’ is defined as: ‘Unmolested, tranquil, free from interference or disturbance’ Blacks Law Dictionary.” The judge of the District Court held that as the con-gregation had had serious differences over who should be its pastor and which finally resulted in criminal charges and conviction -of two of the members for disturbing the peace that “the wrangling over the matter has been going on for some time and h-as been of such character as to necessarily make plaintiffs’ possession unquiet in any sense of the word.”

The essential element of the possessory action is contained in Article 49 of the Louisiana Code of Practice, which reads:

“In order that the possessor of a real estate, or one who claims a right to which •such estate may be subjected, may be entitled to bring a possessory action, it is required :
“1. That he should have had the real .and actual possession -of the property at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient ;
“2. That he should have had that possession quietly and without interruption, by virtue of one of the titles prescribed in the forty-seventh article, for more than a year previous to his being disturbed; provided the possession of less than one year be sufficient, in case the possessor should have been evicted by force or by fraud;
“3. That he should have suffered a real disturbance either in fact or in law;
“4. ■ That he should have brought his suit; at the latest, within the year in which the disturbance took place.
“When the possession of -the plaintiff is accompanied with all those circumstances, it matters- not whether he possesses in good or in bad faith, or even as a usurper, he ■shall nevertheless be entitled to his posses-sory action.” ‘

Also pertinent to the issues are Articles 50, 51 and 52 of the Code of Practice which read:

“50. Kinds of disturbance. — The disturbance which gives rise to the possessory action may be of two kinds; disturbance in fact, or disturbance in law.”
“51. ‘Disturbance in fact’ defined. — Disturbance in fact occurs when -one, by any act, prevents the possessor of a real estate, or of a right growing from such -an estate, from enjoying the same quietly, or throws any obstacle in the way of that enjoyment, or evicts him through violence, or otherwise.”
“52. ‘Disturbance in law’ defined — -Demand insufficient. — Disturbance in law takes place when one, pretending to be the possessor of a real estate, says that he is disturbed by the real possessor, and brings -against the latter the possessory action ; for in such a case the true possessor is disturbed by -this action, and may also bring a possessory action, in order to be quieted in his possession.
“But in no case shall the mere demand in revendication of a real estate, or of a real right, be considered as a disturbance in the enjoyment of a possessor, and entitle him to bring a possessory action.”

The Articles of the Code of Practice would appear to make it clear that a possessor does possess quietly and without interference unless and until he suffers a real disturbance to his possession.

Counsel for plaintiff cited the case of Pittman v. Bourg, 179 La. 66, 153 So. 22-24, in which the Court said:

“ ‘Barring such -a disturbance “in fact or in law” (continuing for more than a year), John B. Pittman, his heirs or assigns would be presumed to have continued to enjoy their initial possession, and entitled to provoke the possession action in vindication thereof.’ ”
“ ‘Neither the granting of a trapping or mineral lease amounts to a disturbance in law or in fact against the established possession of a third person, not a party to such lease. The actual disturbance, if any, must be accomplished by some actual deed or act that “brings home” to the "actual possessor,” the realization that his dominion is being seriously challenged. That is not accomplished by the execution of contracts to which he is a stranger.’ ” (Emphasis ours.)
“ ‘A disturbance, if made, must also be supplemented by a continuance of more than a year, in order to warrant the disturber in 'invoking the possessory action. * *

Plaintiff also cites Glass v. Stewart, 16 La.App. 387, 133 So. 787, in which case the plaintiff and defendant had been wrangling over the ownership of a piece of land for some years. The defendant visited and walked over the disputed property and also attempted to sell the timber therefrom and, finally, interfered with plaintiff’s tenant to such an extent that he was prevented from cultivating the land and it was this act upon which the plaintiff brought a posses-sory action. As stated by counsel for plaintiff, the court maintained the possessory action although it could hardly be said that the plaintiff’s possession was “tranquil and unmolested.” The Court, 133 So. on page 789, said:

“Neither did the fact that defendants visited and walked over the land and made some effort to sell it constitute a talcing of actual corporeal possession of it. This only indicated that they claimed to own it, but nothing more. * * *
“During all the years in which both plaintiff and defendants claimed ownership of this property, plaintiff was by far the most active in taking actual corporeal possession, lin that he rented it and collected rents from it during a number of years. He paid taxes on it a greater portion of the time, and on each occasion defendants attempted to take possession they were met by vigorous protests from plaintiff.”

In the recent case of Rayson v. Beck et al, La.App., 19 So.2d 734, which was a posses-sory action, the Court held:

“Possessory Action: Where defendants, within a year of disturbance of plaintiff’s possession complained of, had so far interfered with plaintiff’s administration and management of realty as to demand and receive rents from tenants on property, plaintiff lacked requisite quiet and uninterrupted possession for more than a year prior to disturbance to enable plaintiff to maintain possessory action. Code Prac. arts. 6, 49.”

Again on page 736 of 19 So.2d the Court said:

“In this case we are dealing not with the execution of contracts, but with incidents of actual disturbance, of which incidents this plaintiff had knowledge and certainly should have had realization that they constituted a challenge to her dominion and a disturbance to her possession.”

In the instant case, the only disturbance was a disturbance of the peace and not a disturbance of plaintiff’s possession. They remained in possession and held their possession without interruption as required by law until the commission of the act complained of by the defendant. We are of the opinion that the plaintiffs have proven their case.

For .the reasons above set forth, the judgment of the lower court is hereby reversed. There is now judgment in favor of plaintiffs and against the defendants, Roy Strain and Mrs. Roy Strain, as prayed for, decreeing plaintiffs to be in the possession of the following described property, viz.: One (1) acre of land, with the improvements thereon, being and located in the Sixth Ward of the Parish of East Feliciana, State of Louisiana and described as being taken from the southwest corner of 25 acres of land bought by Laurence Odom as per deed in Book N-2, folic* 418, bounded north and east by Odom; south by Natalbany Lumber Co. and west by Natalbany Lumber Co.; located in the southwest corner of Section 44 T 3 S R 3 E, East Feliciana Parish, Louisiana.

It is further ordered and decreed that a writ of injunction issue as prayed by plaintiffs, permanently enjoining and restraining defendants from further trespassing on said property or from interfering in any way with plaintiffs in their possession and occupancy of same.

It is further ordered that defendants pay costs in both Courts.


author: DORE, Judge.

text:
    SINGLETARY v. KIRBY et al.
    No. 3081.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Sanders, Miller, Downing & Rubin, of Baton Rouge, for appellant.
    Watson, Blanche, Fridge & Wilson, of Baton Rouge, for appellee.
   DORE, Judge.

This is a suit by T. J. Singletary, individually for medical and other expenses and for property damage, and on behalf of his minor son, John Noland Singletary, for personal injuries sustained by the said minor son, all arising out of a collision between a Ford Coupe automobile allegedly owned by the plaintiff, T. J. Singletary, and driven by the said minor, accompanied by his father, and a lumber truck with an attached trailer, belonging to defendant E. W. Kirby, and driven by Robert Hamilton, an employee of the said Kirby, and while in the course and scope of his employment. The suit is against Robert Hamilton, the driver, E. W. Kirby, the owner, and his insurer, Standard Accident Insurance Company.

The accident occurred on the afternoon of June 28, 1946, at about 4:00 P. M., on Louisiana Highway 36, commonly known as the Plank Road, at a point within the Parish of East Baton Rouge and at a point approximately three miles north of the intersection known as the Zachary Crossing and about 17 miles north of the then City limits of Baton Rouge. At the point of collision, the said highway is a straight and level black top highway of at least eighteen feet in width for at least a mile in either direction. The automobile driven by young Singletary was proceeding south while the truck-trailer was proceeding north.

Plaintiff alleges that the accident was due entirely to the gross recklessness and negligence of Hamilton, as more fully alleged hereinafter.

Plaintiff alleges that his son was driving the Ford Coupe automobile in a southerly direction, well on the western side of the said road, at a moderate rate of speed, approximately 45 to 50 miles per hour; that there was a large cattle truck going north approaching from the south, in its right hand side, the eastern side of the road; that as the Ford and cattle truck approached each other, preparatory to pass each other, the Kirby truck, which was also proceeding in a northerly direction, well behind and screened by the cattle truck, suddenly turned to its left, out into the lane of traffic along which plaintiff’s car was proceeding; that when this sudden swerving of the Kirby truck to its left, from behind the cattle truck, into plaintiff’s lane of travel, occurred, a collision appeared to be inevitable as there was no time for plaintiff’s car to be brought to a stop or otherwise avoid the impending collision; that his son cut to the right well out on the shoulder on the extreme western side, his right hand side of the road, driving his car into the ditch on his side of the road, and while in that position the left front of the Kirby truck struck the left rear of plaintiff’s car. The gist of plaintiff’s allegations is that the accident happened on young Singletary’s extreme right hand side of his lane of travel and well to his right of the center of the highway. The plaintiff further alleges that his automobile was severely damaged and his son was seriously injured. In the alternative, the plaintiff alleges that the Kirby truck driver had the last clear chance of avoiding the accident by pulling his truck back on to his own side, the eastern side, of the road.

The defendants, in their answer, after specifically denying any negligence on the part of Hamilton, the driver of the truck-trailer, allege an entirely different version of what occurred. Their version is as follows :

“Defendants show that as the cattle truck neared the approaching car of petitioner there was a car parked on the east side of the Plank Road, facing South, partly on the shoulder, and partly on the blacktop; that as the cattle truck which was ahead of defendant Kirby’s truck operated by defendant Hamilton, passed this parked car, veering to the left, and completely passed the parked automobile, it straightened out on the cattle truck’s right side of the Plank Road and proceeded North, and that as it had straightened out defendant Hamilton noted the automobile of petitioner proceeding South at a terrific, unlawful and reckless rate of speed, and noted that it just barely missed striking the cattle truck; that defendant Hamilton seeing that if he attempted to follow the cattle truck and pass the parked car he might likewise narrowly miss being struck by petitioner’s car, or be actually struck, he slowed his truck down, did not attempt to pass the parked car but came to a stop South of the parked car on the East side of the center of the Plank Road with the wheels of the truck practically on the East edge of the blacktop portion where it joins the shoulder, and that after narrowly averting a collision with the cattle truck aforesaid, defendant Hamilton noted the petitioner’s automobile, being driven at that time by his minor son, began to vear, and skid, and seemed to be out of control, and that without slackening speed the car swerved and skidded in the highway over the centerline thereof with the front end headed in a westerly direction, and the rear end swinging South and eastward in a skid, and that the left rear fender and bumper of plaintiff’s car skidded across the center of the highway and struck the truck of defendant Kirby (operated by defendant Hamilton) on the left front fender of said truck, at a point just beneath the left fender parking light, ripping off a portion of the left front fender of said truck.”

The defendants specifically aver that the accident was caused by the negligence of young Singletary “in proceeding at an unlawful, reckless and dangerous rate of speed on the highway which was damp and slick at the time, and which had some loose surface rocks or gravel thereon, and that petitioner’s minor son did not have the automobile under control, but in fact lost control of same and the collision was due entirely to his negligence, and to the fact that his negligence caused him to skid from the west across the center line of the highway to the east with his car swirving, the rear end going around faster than the front end, and the car facing in a westerly direction across the center line, and continuing until the collision.”

In the alternative, the defendants plead contributory negligence in bar of recovery.

Upon these issues, the case was tried. The trial judge has favored us with written reasons for his decision of the case. In those reasons, he states:

“Plaintiff contends that the proximate cause of the accident was the act of the driver of the lumber truck in suddenly swerving from behind the cattle truck to the left side of the highway and into the path of the oncoming coupe.
“The defendants on the other hand say that the approximate cause of the collision was the act of young Singletary in driving on the wrong side of the highway at a dangerous and excessive rate of speed on the moist highway and without keeping a proper look out.
“It will be readily observed that the case presents almost entirely questions of fact. Obviously if the accident happened as plaintiff claims it did, defendants are liable. If on the other hand it happened in the way defendants contend that it did, the suit should be dismissed.”

After a review of the testimony of each witness who testified in the case and after commenting on the physical facts found by some of the witnesses, the trial judge has this to say: “I am firmly of the opinion that the plaintiff has failed to show any negligence of the driver of the lumber truck which could be said to be a contributing or proximate cause of the accident. On the contrary I am of the opinion that the accident was due solely to the negligence of plaintiff’s minor son.” He dismissed plaintiff’s suit. Plaintiff has appealed.

The primary question is the location of the Ford automobile and the Kirby truck with respect to the center of the road when the contact between them occurred.

The record discloses that aside from two elderly negroes who were not summoned as witnesses, there were four eye witnesss who gave testimony concerning the accident; plaintiff and his son, Robert Hamilton, the driver of the truck, and Albert Scott, a fellow employee of Hamilton, who was riding in the cab with Hamilton.

Plaintiff testified that his son was driving the Ford coupe at about 45 or 50 miles per hour, in its traffic lane on the right hand side, on approaching the scene of the collision. There was a red cattle truck, with a stake body, on its right hand side in its traffic lane, coming from the south, going reasonably slowly, approaching them. As they approached the cattle truck and got in real close proximity thereof, he suddenly saw the lumber truck pull out from behind the cattle truck. Due to the shortness of the distance, he saw that a wreck was inevitable and he immediately told his son to take to the ditch, which his son did, “slowing the car down and taking the ditch was one and the same action.” At the moment of the impact, the right front wheel was in the ditch, the left front wheel was on the gravel shoulder about two feet from the edge of the black top; the rear wheels were in line with the front wheels. While in that position, the truck hit the axle of the left rear wheel and with such force as to knock the Ford entirely in the ditch and splitting the nut holding the wheel on the axle. His son was knocked out of and under the Ford, his shoulder being wedged under the left wheel; he had been dragged on the gravel for twelve steps. His son pulled the Ford partly in the ditch some fifteen feet before the impact. He had not seen any furniture truck parked on the east side of the road. He states that after attending to his son, he examined the surface of the road where the collision occurred, and found some skid marks of between a foot and half to two feet where the left rear tire had skidded on the black top going into the ditch, at right angle to the black top; the gravel on the shoulder and the grass in the ditch were torn. There were no other skid marks made by his car. Although he testified that the Ford car came to rest in the ditch, nowhere, in his testimony does he state where the truck finally stopped or came to rest. In one part of his testimony, he states that the truck was moved after the collision; later on he states that it was his impression that it was moved, and still later, he states that he is not absolutely positive as to when the truck was moved, whether before or after the State Police had arrived at the scene of the accident.

According to John Noland Singletary, plaintiff’s minor son and the driver of the Ford automobile, he, the minor, was driving- south at about forty-five to fifty miles an hour; he first saw the cattle truck approaching about a half mile distant and well on its side of the road. As he and the cattle truck approached each other he had no reason to suspect an accident in that the cattle truck was travelling on its proper side of the highway and never, at any time, did it leave its proper side. He states: “ * * * and when I reached approximately 65 or 70 feet from the cattle truck the lumber truck pulled out from behind tire cattle truck on to my side of the road, and when I saw this I immediately applied the brakes, and then my father said to take the ditch which I was going to do anyway, and I turned the wheel, not releasing my brakes at all, and then we collided. My front wheel was in the ditch and my left front wheel was close to the edge of the black top.” The car was not out of control and skidded slightly if any at all. At the time of impact, his car was well over on the west side, his right hand and proper side, of the road. The truck’s left front wheel struck his left rear wheel. His left front door flew open and he was thrown out of the door upon the gravel. He, like his father, did not see the furniture truck parked on the east side of the road.

These two witnesses state that there had been intermittent showers; the road was slightly damp but the road wasn’t slippery.

Robert Hamilton, the driver of the Kirby truck, testified that he, accompanied by Albert Scott, a fellow employee, was driving north, trailing a cattle truck for about a half mile. Near the situs of the accident, Warner Stewart lives in a house on the east side of the road. There is a little narrow driveway leading from the road to Stewart’s house. At the time of the accident, there was a furniture truck parked in this driveway; the truck was facing south, with its right wheels on the black top and its left wheels on the gravel or shoulder. Upon approaching this parked furniture truck, the cattle truck swung to its left to go around the parked truck. He cut to the left also, and immediately saw the Single-tary car coming. He cut back to his lane of travel and started slowing down. The cattle truck went around the parked truck and assumed its lane of travel. He saw when the Singletary car and the cattle truck passéd each other, the Singletary car barely missing the back of the cattle truck. He states: “Well, when I saw his car coming down the road, just as it passed the cattle truck it was zigzagging across the road skidding, and I had come to about a dead stop when his back end flopped on the side of the road.” He states that it was the left rear end of the car which was in his lane of travel. At the time of impact, the car was facing in a southwest direction and the car travelled in the direction of the ditch. He states: “From the front end of the truck where it hit to the landing where it landed in the ditch was about I imagine 22 paces (steps).” He places the locus of the collision sixteen steps from Warner’s driveway. He is positive in his testimony that he was in his right lane of travel when the collision took place and that his truck had not been moved until the State Police had arrived and ordered its removal.

Albert Scott testified that there was a furniture truck parked on the east side of the road, facing south, partly on both the black top and shoulder, at Stewart’s driveway ; when the cattle truck got to the furniture truck, it swung out to go around the furniture truck; it straightened out in its proper lane of traffic after going around the furniture truck and it is then that he saw the Singletary car. The driver of the Singletary car applied his brakes causing the car to skid; it came “pretty close” to the cattle truck. The Singletary car skidded with the front end angling toward the ditch; the brakes were on when the back fender of the Singletary car struck the left fender of the Kirby truck, while the Kirby truck was on its right hand side, near the center of the road. After the collision the Ford took to the west ditch and the Kirby truck remained and was stopped in its lane of travel. He is positive the Kirby truck was not moved until the State Police arrived. He corroborates Hamilton’s testimony to the effect that Hamilton started to pull out to go around the furniture truck, saw the Singletary car coming and then pulled back to his side of the road.

Warner Stewart testified that he was sitting on his front porch facing the highway; the first thing which attracted his attention was the application of brakes; “the cattle truck was just pulling around the furniture truck and the cattle truck was driving slowly; the furniture truck was parked headed south on the east side of the road, partly on the black top and partly off in his driveway and in front of his gate. He saw the Singletary car after he heard the application of the brakes; the Singletary car passed the cattle truck not very far from the furniture truck, “space for a truck to pull around another truck.” The Kirby truck was coming behind the cattle' truck very slowly. Before the collision of the Ford and Kirby truck, the Singletary car “was, kind of zigzagging. The road was wet.” The collision occurred south of his driveway, south of his mail box; at the time of the collision, from his house, the Kirby truck seemed that it was stopped; it wasn’t moving fast. The truck did not go any further. The ford went into the ditch on the west side. He ran to the situs of the accident. When he arrived at the situs of the accident, the Kirby truck was straight facing north and in its proper side of the highway. He states that he saw when Hamilton and Scott got out of the Kirby truck and he is positive that the truck was not moved until the state police arrived and had the truck removed from the lane of travel. He states that when he first saw the Singletary car, it seemed to him that it “was coming pretty fast” and that it was about 100 yards from the cattle truck. When he saw the Singletary car it was in front of his driveway, and it was zigzagging.

Malcomb Dougherty, Jr., sqn-in-law of the plaintiff, testified' that he visited the scene of the accident on the next afternoon following the accident. He states that the grass .and weeds were mashed down in the ditch. The west side of the ditch which was an embankment was scarred slightly and there was a skid mark very apparent on the west side of the road, at right angle to the road, and on the west edge of the road at approximately eighteen inches therefrom. There was a very apparent depression in the gravel shoulder. In the direct line with the skid mark, on the west bank of the ditch, there was a scar. He did not observe any skid marks on the highway north of the right angle skid mark. He was called on rebuttal. .He testified mainly to a sketch he prepared upon which various measurements were shown.

Gorge A. Daigle, the driver of the furniture truck testified that he had parked his truck in. front of Stewart’s driveway on the left hand side of the road. However, he says that his truck was parked on the shoulder of the road and that no part thereof was on the black top portion of the highway. According to this witness, the collision occurred south of Stewart’s mail box and in front of Hezekiah Scott’s house. He was in Stewart’s house at the time of the collision; he went to the scene of the accident after the crash. He saw the Kirby truck but he cannot give the location of it or state whether or not it had been’ moved.

C. J. Waston, the general foreman, and mechanic of defendant Kirby, testified that he reached.the scene of the accident prior to the arrival of the state police. He inspected the scene of the accident and the position of the car and truck. He states that the truck was parallel on the road and well on his own side, east side of the center, and that he questioned Hamilton, the driver of the truck, who, stated that the truck had not been moved since the collision. He, the witness, told the driver pot to move the truck until after the arrival of the police. He states that there were skid marks some distance above Mr. Single-tary’s car but would not venture to say how far, as he did not make any measurements. These skid marks were kind of zigzagging. He also testified that on the day previous to his testifying that he attempted to park his car in .Stewart’s-driveway, so that no part of the same would be on the black top. He parked his car as close to -the ditch as he could, and he stated the left wheels of his -car were off the black top but the bumper and fender still protruded over the black top of the road. The shoulders of the road and Stewart’s driveway are narrow. He states that the trailer part of the Kirby truck is 28 feet in length and feet in width; ’ that- the overall length of the truck and trailer is 42 feet. He does not give the width of the truck but we presume it was the regular' width of 5Y% feet. The truck portion had hyrdaulic brakes.

Trooper O. D. Hayden testified that when he arrived, he found the truck was entirely on the 'east side of the center of the highway parallel to the road. The Ford was in the ditch on the west side and to the south of the truck. He made no investigation in that his duties were to take care of the traffic; the technical part was in charge of Trooper Arledge. ,

Trooper Lee Arledge testified that he and Trooper Hayden arrived at the scene of the collision at 5:00 P.M. On his arrival, he found the Ford car in the ditch on the west side of the rpad, facing south. The Kirby truck was in its normal traffic lane on the east side, with no part of either to the west of the center of the road. He states that he had no trouble locating the point of impact due to the usual settlement of dirt. He states that the debris was scattered around in a three or four foot diameter;' the center of the diameter was near the center of the roadway, and that most of the dirt was oh the west of the center of the black top. He states that the Ford entered the ditch south of the point of impact and came to rest fifty 'feet from the point of impact. He states that the front of the truck had not been damaged but that the damage done to it was behind the headlight on the left front fender of the truck.

He interviewed the truck driver, his companion and Mr. Singletary. The truck driver told him that he had started to pass another vehicle and that he saw the Single-tary cár coming, and that he cut back to his right and stopped,-and while in this position the Singletary car struck the truck. He did not interrogate .the boy at all. Mr. Singletary stated that his boy had applied the brakes on seeing the truck, causing the car to skid sideways and strike the truck. He places the point of contact about 30 feet south of Stewart’s driveway. .He also testified that Stewart’s driveway was a very narrow driveway; , the shoulders are narrow and that it would be impossible to park a car at that driveway without some part of it being on the blacktop. On cross examination he stated: “ * * * from the point of impact the car (Ford) made almost a 45° angle toward the ditch and went into the ditch perhaps some ten or twelve feet from the point of impact until it was in the ditch.” He testified that he found no skid marks running north of the collision. He states that the black top was wet and that such skid marks would not show- up.

The examination of this witness covers thirty-seven pages of the transcript. It appears that most of his testimony is based on assumptions and was given from memory rather than notes of memoranda made by him. His testimony did not impress the trial judge. The trial judge doubted- the value of hi's testimony and the report of the witness. For that reason we have only given such portion of his testimony which we find is corroborated by other witnesses in the case.

On these facts as set out above, the trial judge states:'

“After a careful consideration of the case, I am of the opinion that the preponderance of the evidence forces the conclusion that this unfortunate accident was due to. the negligence of plaintiff’s minor son, which is attributable to his father, the plaintiff in the case. That negligence in my opinion consisted of the speed at which he was driving on a wet highway, his failure to' keep a proper lookout for oncoming traffic, and the projection of the Fofd coupe he was driving across tlie center of the highway. This projection in- my opinion, was due to the skidding of the coupe which was caused by the tardy application of his brakes after he observed that the cattle truck turned to the left in order to clear the furniture truck which was illegally and improperly parked on the left side of the highway; or it might be that the young man’s excitement was also occasioned by seeing the lumber truck which he believed was • going to pass the cattle truck on his side of the road. The preponderance of the testimony is to the effect that regardless of what may have been the intention of the driver of the lumber truck, whether to pass the cattle truck or furniture truck, upon seeing the oncoming coupe skidding down the rpad, the driver of the truck.pulled to a'position on the east side of the road, leaving the coupe ample room to pass without a collision.

“It makes no practical difference whether the lumber truck at the time of the collision was stopped or almost stopped so long as it was on its side' of the road and travel-ling at a reasonable rate of speed.

“Both the plaintiff and his son admitted that the coupe was being driven at a speed of from 45 to 55 miles per hour when the cattle truck was first observed some 300 yards away. If the brakes of the coupe were applied at this distance it is difficult to understand why when the coupe reached any of the three trucks involved, the coupe was skidding. Young Singletary admits that there was some skidding while other witnesses testified that the coupe' prior to striking the truck was zigzagging down the highway. It seems to me that if young Singletary had be'en traveling at a safe rate of speed he could have handled the situation in a more effective and successful way.

“If the collision happened in the way plaintiff would have the Court believe, it would have been necessary for the front unit of the tractor to have been almost off the road on the west side when the impact occurred because he says the left rear wheel of the coupe, which he says was struck was only two feet from the edge of the ditch. Now, if the truck came that far over, how was it that immediately after the accident it was found on the east side of the road in normal traffic lane?

“Mr. Singletary says that he is under the impression that after the collision the truck was moved. The preponderance of the evidence is to the contrary.'

“It. is argued that owing to the fact that the impact took place south of the Warner Stewart driveway the presence of the furniture truck there could ’not and did not contribute to the accident. The preponderance of the evidence is to the effect that the cattle truck had to veer to the left to pass that truck. This and the fact that he saw the lumber truck trailing the cattle truck is what excited plaintiff’s son, causing him to apply 'his brakes while travelling at a high rate of speed and the loss of control of the coupe.

“The photograph of the lumber truck does not indicate that it came in contact with the coupe from the front. On the contrary it indicates that the fender of the truck was struck behind the headlight which is an ■ indication that the back end of the skidding coüpe struck the fender at an angle. '

“Counsel for plaintiff direct the court’s attention to various alleged violations of the provisions of the highway regulatory act by the driver of the lumber truck. That there was a failure on the part of the truck driver to observe several of said regulations, there • can be no doubt, but the evidence fails to show that any of such violations contributed to or were the proximate cause of the accident here im volved. In these circumstances the plaintiff can not rightfully complain. See Bourgeois v. Longman [La.App.], 199 So. 142. See also [Williams v. Pelican Creamery, La.App], 30 So.2d 574.

“I am firmly -of the opinion that the plaintiff has failed to show any negligence of the driver of the lumber truck which could be said to be a contributing cause of the accident. On the contrary I am of the opinion that 'the accident was due solely to the negligence of plaintiff’s minor son heretofore mentioned, which is attributable to him.”

In this court, plaintiff takes exception to the trial court’s statement that: “Both the plaintiff and his son admitted that the coupe was being driven at a speed of from 45 to 50 miles an hour when the cattle truck was first observed some 300 yards away. If the brakes were applied at this distance it is difficult to understand why when the coupe reached any of the three trucks involved, the coupe was skidding.” Plaintiff admits in his brief that young Singletary first saw the cattle truck when it was some 150 or 300 yards away but contend that young Singletary did not apply his brakes before the time that he and the cattle truck were only about 75 feet apart. We do not interpret the statement of the trial judge to mean that young Singletary applied his brakes when he perceived the cattle truck was 300 yards distant. It is a well proven fact that the furniture truck was parked partly on and partly off the black top in front of Stewart’s driveway. Plaintiff and his minor son are charged with seeing that which they should have been seen. This was an obstruction in the path of the cattle truck and plaintiff and his son well knew or should have known that the cattle truck had to cut to its left; they could anticipate that the cattle truck would reach this obstruction, which it did, before the Ford in which they were travelling. Young Singletary failed to take proper precaution in reducing his speed and placing his car under proper control. This is the meaning which we give to the Judge’s statement.

Under the facts as detailed above, and considering the conclusion of the trial judge, it may appropriately be said that no manifest error appears in the judgment from which plaintiff appealed. Like the district judge we are of the opinion that the sole proximate cause of the accident was the negligence of young Singletary.

For these reasons, the judgment appealed from is affirmed.


author: ELLIS, Judge. '

text:
    WELLS v. McGEHEE.
    No. 3097.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.

      J. J. Jackson, of New Orleans, for appellant.
    Carter & Erwin, Ott & Watts and Delos R. Johnson, all of Franklinton, for appellee.
   ELLIS, Judge. '

On the afternoon of February 19th, 1941, Helen Elsie Wells, 7 years of age and the daughter of the plaintiff, Mrs. Nell O. Wells, was playing on the school grounds of the Franklinton Grammar School and fell and sustained a Colie’s fracture of the right fore arm. She was taken to the office of the defendant, Dr. W. R. McGehee, where she was administered an anesthetic, viz.: Chloroform, and died within a few minutes. Plaintiff therefore filed this suit in which she charges that Dr. McGehee was guilty of malpractice in that he administered the anesthetic without having made any preliminary examination of the heart and lungs of this child, and also in a grossly careless, unskillful and indifferent manner, in a quantity which caused the death of the child, and that he made no effort to •revive the child, and, lastly, that plaintiff was at her home and that had she been summoned she would not have consented to the administering of the chloroform without consulting another physician. Plaintiff therefore prays for judgment against the defendant for the loss of affection and companionship of her child and mental anguish and suffering caused by the death of the child, in the sum of $10,000.00; for loss of earnings she might have expected from this child, $2000.00; and for the loss of insurance in the amount of $500.00, in that she had a policy of insurance on the life of this minor child in the sum of $500.-00 with a clause providing for double indemnity in the event of accidental death, and that she was without funds.to bury the child until she had collected this life insurance and the defendant absented himself and refused,' neglected and failed to fur'nish plaintiff with a death certificate until such time that the plaintiff had to accept •a settlement with the insurance company in the sum of $500.00, and therefore plaintiff prays for judgment for total damages in 'the full sum of $12,500.00 against the defendant.

The defendant filed a general denial and set up that the anesthetic was administered in accordance with his instructions and under his direct supervision.

The judge, in a well written opinion, rendered judgment in favor of the defendant, dismissing plaintiff’s suit at plaintiff’s costs. From this judgment plaintiff obtained a devolutive appeal to this Court. The defendant through his counsel has filed a motion to dismiss the appeal of the plaintiff for the reason that the devolutive appeal herein was by petition, and appellant failed to file the bond as fixed by the order prior to the service thereof, or within ten days after -the date of the order.

The record shows that the plaintiff secured an order for a devolutive appeal on October 6, 1948, returnable to the Court of Appeal for the First Circuit on the second Monday of November, being November 8, 1948, upon furnishing bond in the sum of $50.00, and also an order that a copy of the petition and order and citation of appeal be served upon Dr. W. R. McGehee, defendant, according to law. Service was made upon the defendant on the 7th day of October, 1948 by A. O. Passman, Deputy Sheriff. The bond was filed on October 25, 1948 and motion to dismiss the appeal was filed in this Court on January 19, 1949.

Counsel for defendant rely upon the case of Campbell v. F. Hollier & Sons, La.App., 4 So.2d 101. In this case, no appeal bond was ever filed and the Court held that there was no appeal and on its own motion dismissed appellants suspensive appeal for this reason. There is no doubt that the case relied upon by defendant is correct. The service of the petition and order of appeal was made prior to the filing of the bond, but when the bond was timely filed and the appeal perfected in this Court, the defendant’s motion to dismiss should have been filed within -three days after the filing of the transcript in this court -and therefore came too late. Esparros v. Vicknair, 191 La. 193, 184 So. 745; Power v. Christina, 7 La.App. 651; Powell Motor Co. v. A. Christina & Bros., 8 La.App. 174; Dart’s Stats. § 1413, Act No. 45 of 1870, Ex. Sess., § 11.

Conceding for the mere sake of argument that the motion -to dismiss the appeal was timely filed, we are of the opinion that there is no merit to the motion. It is a fact that the citation of appeal was issued by the clerk before the filing of the bond, however, the appeal bond was timely filed. It is the duty of the Clerk of Court to issue the citation in order that the order of appeal may be served on the appellee. The appellant has nothing to do about if. The -appellant’s duty is solely to furnish the bond as called for in the order during the delay required by law. The appellant in this case has fulfilled all of her duties. The district clerk of court was a little too everzealous in the performance of his duties. This cannot he charged to appellant.

However, regardless of whether this motion to dismiss was timely filed, we -still think that it should be denied as the bond was timely filed and appears in the record, which has the effect of curing the prematurity of the service of citation of appeal. See Mossler Acceptance Co. v. Moliere, La.App., 181 So. 228.

The facts in this case show that .plaintiff’s daughter, Helen Elsie Wells, was playing with some other children during the afternoon recess of the Franklinton School and, as a result of being pushed by one of the children, she fell and broke her right -arm in the vicinity -of the wrist. Mr. Hugh E. Foil, who was the principal of the elementary school, testified that soon after this accident happened he made an attempt to locate the mother, plaintiff herein, by call-the canning plant or Dr. T. C. W. Magee, and, being unable to do so, -he then -phoned to Dr. McGehee, defendant herein, and asked him if he would take the child -and the Doctor told him to bring her to his office. Mr. Foil testified that he felt in this case that the child needed medical attention at once and, after attempting t-o locate the mother and failing, he thought it best to get the child to a doctor as soon as possible. Although this witness -testified •that the plaintiff worked out and although she lived only -a mile from the school, -he made no attempt to locate plaintiff -in her home as he did not know whether he would find -her there and he “was most interested in -getting the little girl to a physician as 'quickly as possible in order that her wrist might be set.” He was ■accompanied to the doctor’s office by Miss Thelma Wood, another teacher -in the school and whom he left with the little girl in the doctor’s office. Miss Wood remained with the child during the' entire operation and until after she died.

The law seems to be well-settled:

“That where the physician or surgeon uses all the customary precautions .practiced by the profession in the particular locality, no liability is incurred. Thus, the highest degree of skill and knowledge is not required in every case, but only such skill and knowledge and practices as are common with-the profession in the locality where the physician or surgeon happens to practice.”

In the case of Mournet v. Sumner, 19 La.App. 346, 139 So. 728, at page 730, the Court, in the .body of the opinion, held as follows:

“The general rule with reference to the responsibility of a doctor for malpractice is stated in 30 Cyc. p. 1507 as follows: ‘A physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his .profession in good standing practicing in similar localities and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning and to act according to his best judgment.’
“This principle of law was approved by our courts in the following cases: Roark et al. v. Peters et al., 2 La.App. 448; Id., 162 La. 111, 110 So. 106; Gouner v. Brosnan et al., 155 La. 1, 98 So. 681; Stern v. Lanng, 106 La. 738, 31 So. 303; Lett v. Smith, 6 La.App. 248; Comeaux v. Miles, 9 La.App. 66, 118 So. 786.
“The duty and liability 'of a dentist to his patient'Corresponds with that of physicians and surgeons generally. Lett v. Smith, supra; Ruling Case Law, vol. 21, p. 386, verbo ‘Physicians and Surgeons.’
“In the case of Gouner v. Brosnan, supra, in determining who bore the Burden of proof in this class of cases, our Supreme Court said: ‘The burden is upon the plaintiff -to establish by a fair preponderance of the evidence the allegations of his petition charging Dr. Brosman with “negligence, carelessness, want.of skill and malpractice” in the methods he employed and in the manner he treated plaintiff’s wound.’ See, also, Roark v. Peters, supra.

“Justice William Howard Taft, as the organ of the United States Circuit Court of Appeals, in the case of Ewing v. Goode, C.C., 78 F. 442, 443, used the following language: ‘A physician is not a warrantor of cures. If the maxim, “res ipsa loquitur,” were applicable to a case like this, and a failure to cure were held to' be ■ evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result few would be courageous enough to practice the healing art, for they would have to assume financial lia-blity for-neárly all the “ills that flesh is heir to.” ’ See, also, Cassingham v. Berry, 67 Okl. 134, 150 P. 139, 168 P. 1020; Ayala v. King-Ryder Lumber Co., 146 La. 536, 83 So. 799; Stern v. Lanng, supra; Lett v. Smith, supra; Nixon v. Pfahler, 279 Pa. 377, 124 A. 130.

“The rule is well established that a physician or dentist cannot be held liable for -the death of a patient under his treatment, where there is no evidence to show negligence or lack of skill on his part, sufficient to overcome the prima facie case in his favor made by the eyidence that the treatment adopted by him was the usual and customary one. The fact that a patient died under such circuriistances does not raise any presumption of negligence or lack of skill on his part. Hoover v. Buckman, 194 Ill.App. 308; Edwards v. Uland, 193 Ind. 376, 140 N.E. 546; Moore v. Smith, 215 Ala. 592, 111 So. 918; McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870; King v. Belmore, 248 Mass. 108, 142 N.E. 911; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487; Hoffman v. Watkins, 78 Wash. 118, 138 P. 664; Miller v. Toles, 183 Mich. 252, 150 N.W. 118, L.R.A. 1915C, 595; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Beckwith v. Boynton, 235 Ill.App. 469; Wilt v. McCallum, 214 Mo.App. 321, 253 S.W. 156; Niebel v. Winslow, 88 N.J.L. 191, 95 A. 995; Kuehnemann v. Boyd, 193 Wis. 588, 214.N.W. 326, 215 N.W. 455; McCoy v. Buck, 87 Ind.App. 433, 157 N.E. 456, 160 N.E. 46; Nixon v. Pfabler, supra; Blodgett v. Nevius, 189 Ill.App. 544;. Wilkins v. Ferrell, 10 Tex.Civ.App. 231, 30 S.W. 450.”

The opinion in the case of Mournet v. Sumner, above , referred to, was approved in the year 1944, in. suit of Freche v. Mary, La.App., 16 So.2d 213. See Also 41 American Jurisprudence, Section 89, page 205.

From this statement of the law it is therefore necessary that we examine the record in this-case to ascertain whether Dr. McGehee, tbe .defendant herein, was guilty of malpractice, in failing to make a proper examination of Helen Elsie Wells before placing her under the anesthetic or in giving or causing to be given an overdose of chloroform, and in failing to obtain the consent of the mother, plaintiff herein, before undertaking the .treatment of the child.

Dr. McGehee testified that after determining the kind -and nature of the fracture, he decided that he would use Chloroform in setting the arm. Before giving the chloroform, he always examined the heart of the -patient, and in this instance, he examined this child’s heart by determining the size as near as possible, the rate of pulse, the character of the pulse and listening to, termed “Auscultation”, of the •heart with a stethescope. He also listened to the lungs for any pathosis that might be present.

Without going into detail, Dr. W. S. Harrell, the physician and surgeon at the Elizabeth Sullivan Memorial Plospital in the City of Bogalusa for fourteen years, testified that prior to giving an anesthesia to anyone he would ascertain how the heart was -functioning, that is, he would listen to see if the heart was functioning normally, to determine whether there was any tuberculosis or cold that might be aggravated by an inhalation type anesthesia, and that he would make this examination with a stethescope. This is exactly the -same examination made by the defendant, Dr. McGehee, before administering the anesthetic to the Wells -child. There is no testimony in the record that any different examination was ever made by any other physician in that parish or neighborhood other than as testified' to by Dr. McGehee and Dr. Harrell, and therefore, under the law, Dr. McGehee was not guilty of malpractice on this count.

As, to the second charge that the chloroform was administered by an incompetent assistant and ■ the child was given an.overdose, the record reveals that under the facts and circumstances in this case that chloroform was. the recognized anesthesia to be given ,by the doctors in the surrounding .countryside. Dr. McGe^ ■hee’s office was heated by an open-face gas heater, and it was agreed by all medical witnesses that ether could not be used around an open flame as it is very highly inflammable and, under such circumstances, might cause an explosion of the patient’s lungs due to gas-ether. The record shows that a patient who has been given ether is very susceptible to -pneumonia and, in the present case, had ether been administered, the child would have had to remain in the office overnight and there were no beds there. Dr. Stafford and Dr. Harrell both testified that chloroform was the proper anesthesia to use under the facts in this case and that, under the same circumstances, they would have used -it -also. The testimony therefore sustains Dr. McGehee in his choice of the use of chloroform.

Mrs. Bessie Sweeney was employed by Dr. McGehee as a nurse in his office and, on the date of the trial which was April 7, 1947, had been so employed by Dr. McGehee since 1933. She testified that she administered the anesthesia in his practice and did so in -the present case. The ■testimony shows that the chloroform was given by the drip method. A regular mask with gauze on it is placed over the patient’s face and the chloroform is dropped on this gauze. She administered the chloroform under the direction of Dr. McGehee. Mrs. Sweeney had trained in the hospital at Tylertown, Mississippi, for 26 months in general nursing and only lacked 10 months of finishing, which would have entitled her to a certificate as a registered nurse. She studied the administration of anesthesia while at the hospital but had no practical experience there, however, she had been giving the anesthesia for Dr. McGehee in his practice since she had been employed by him. In our opinion, the testimony shows that she was well versed in the administration of anesthesia and the effect of same and the different stages involved in general anesthesia. The testimony convinces us that she was competent to give the chloroform in the present case and, furthermore, she administered it under the direction of Dr. McGehee who was present at the time she gave the anesthesia, although busy part of the time in setting the little girl’s arm.

As to the amount of chloroform given, while it is true that the plaintiff, Mrs. Wells, testified that the child’s nose, face and mouth were burned and that the chloroform was given direct from the bottle and that there was no mask used, her testimony is entirely refuted on this point by Dr. McGehee, Mrs. Sweeney, Miss Thelma Wood, the teacher who remained with the child until after her death, and by Dr. Ward, Coroner of the Parish, who saw no burns; by Mr. C. C. Simmons, the undertaker, and his assistant, Mrs. Elizabeth Brumfield, who helped embalm the child; by Miss Carmen Stringfield, who was also a teacher in the grade school at Franklinton and who saw the child after she died.

Within three minutes after the beginning of the administration of the chloroform, the child had stopped breathing, and Dr. McGehee then immediately took means to resuscitate the child. Miss Wood testified that from the time the child was taken into the operating room until she died was not more than five minutes. Dr. McGehee and Mrs. Sweeney both testified that this child went from the first stage of anesthesia which is shown to be “before you induce sleep”, directly to the last stage which is death. Dr. Harrell testified that some patients are hypersensitive to certain kinds of anesthesia and that there is no way of determining this prior to its application. There is no doubt from the testimony in this case, that plaintiff’s little daughter was hypersensitive to chloroform, which produced an immediate toxic condition resulting in her death, and which was diagnosed by Dr. Ward, the Coroner of Washington Parish, as chloroform poisoning.

It is also shown by the testimony of Dr. McGehee, and there is nothing in the record to the contrary, that when chloroform is well diluted with air and the patient dies, it is with respiratory failure first and cardiac failure later or within several minutes, due to the lack of oxygen; and that when chloroform is administered too quickly and in too large amounts so that it is not well diluted with air, the heart stops' beating first, due to failure of the heart, and in the instant case, there was respiratory failure first and the heart was beating for several minutes afterwards. It is apparent, therefore, that this child did not die from an overdose of chloroform but as a result of a toxic condition produced by the chloroform and explained -by Dr. W. S. Harrell in his testimony.

The plaintiff has also charged that Dr. McGehee did not endeavor to resuscitate the child, and although she was .not present until after the child had died,, she testified to this effect. The testimony of Miss Thelma Wood, Mrs. Sweeney and of the defendant, Dr. McGehee, refutes this charge. Miss Wood and Mrs. Sweeney testified that artificial respiration was used as well as hypodermics, and Dr. McGehee testified that he “.immediately began trying to revive the child by means of injections of adrenalin into the vein and giving artificial respiration because the heart was still beating, but the child was not breathing. This did not work so I gave a hypodermic of 1/130 grain of atrophine of sulphate. Then I continued to give artificial respiration in the usual manner. I think by three different manners; lying prone with rhymtic pressure and releasing lower ribs posterior and working the arms back and forth to and from the body; putting the child over my shoulder and taking her back; these methods failed and I then gave the child an injection of coramine; still no breathing, the child’s heart was getting weaker. I injected % of 1 c.c., I am not positive about the it could have been one, info the heart muscles.”

There- is no doubt from the testimony but that everything was done to revive the child. -

There only remains to be decided the question as to whether the defendant is liable 'herein by reason of the fact that he failed to obtain the consent of the mother, who was a widow, before undertaking the treatment as given by him to this child.

On this question the facts are simple. The consent of the mother could not be obtained. . However, the record shows that Mr. Foil, the principal of the grammar school, called the canning plant where he understood the mother was working or Dr. T. C. W. Magee’s office, in an effort to locate her before calling Dr. McGehee. He was unsuccessful.

“The general rule that a surgeon operates at his peril without first obtaining the consent oí his patient or someone legally authorized to consent for him is qualified in its application 'by most courts in cases of emergency or unanticipated conditions where some immediate action is found necessary for the -preservation of -the life or health of the patient, and it is impracticable to first obtain consent to the operation or treatment which the surgeon deems to be immediately necessary. * * * It has been said, too, that the rules of professional conduct of trained and expert surgeons must be fixed to reasonably fit complex modern conditions, and that such a surgeon, confronted by an emergency, must be permitted, after a fair and careful examination of the patient, to exercise his best professional judgment as to the necessity for immediate operation or treatment without waiting for the consent ordinarily required. In such a case, where the emergency endangers the life or health of the patient, it is the surgeon’s duty to do that which the case demands within the usual and customary practice among physicians and surgeons in the- same or similar localities, without the consent of the patient or his parents.” See 41 American Jurisprudence 222, par. 110.

Under the facts in this case, we are of the opinion that an emergency existed and that under such emergency, Dr. McGehee was fully justified to proceed in the manner in which he did without the express consent of the child’s mother, as Dr. McGehee followed -the usual and customary practice among physicians and surgeons in the same locality.

For the above reasons, the judgment of the District Court will be affirmed.