text:
    DUNAWAY et al. v. CADE.
    No. 3094.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.

      Ott & Watts, of Franklinton, for appellant.
    A. J. Jones and Ott & Richardson,, all of Bogalusa, for appellee.
   ELLIS, Judge.

This is a suit by Ira Dunaway, individually and as the father of Ira Dunaway, Jr., in which he is seeking to recover damages for personal injuries sustained by his minor son as a result of a collision between an automobile owned and operated by G. L. Cade, defendant herein, and a motor bike owned and operated by the minor, Ira Dunaway, Jr.

Plaintiff alleges that his minor son was riding his motor bike on Avenue F, which street runs north and south in the City of Bogalusa, Louisiana, on May 11, 1947 at approximately 1 A.M.; that -he was traveling south on said avenue and was following the automobile being operated by the defendant Cade on the same avenue in the same direction.

While plaintiff also sued the Bogalusa Lumber Company, Inc., it was shown that Cade was not acting in the scope of his authority or in the regular course of his business on any mission for the Bogalusa Lumber Company, his employer, and Boga-lusa Lumber Company, Inc., having filed an exception of no right of action and testimony being taken thereon, the exception was properly sustained and plaintiff does not complain of this -ruling.

Plaintiff’s main cause of action is set forth in Articles 7 and 8 of his petition and these articles are as follows:

“VII. That G. L. (Bud) Cade after passing the intersection of Tenth Street with Avenue F continue south on Avenue F in the city limits of the City of Bogalu-sa, Washington Parish, Louisiana, petitioner’s son doing likewise, staying at a reasonable safe distance behind the vehicle driven by the said G. L. (Bud) Cade. After G. L. (Bud) Cade had driven approximately 35’ or 5O' from the south line of the intersection of Tenth Street with Avenue F, he applied brakes to his vehicle without signal and immediately without warning began to -travel in reverse, backing up and upon so doing crashed into and caused petitioner’s son to crash into the vehicle as driven by the said G. L.' (Bud) Cade.”
“VIII. That the said employee of the defendant corporation, Bogalusa Lumber Company, Inc., gave petitioner’s son no warning whatsoever of his intention to stop and to reverse the direction of his said vehicle, and by the failure to give warning or signal caused the accident in question severely injuring Ira Du'naway, Jr. and damaging said motor bike.”

Plaintiff prays for judgment individually for hospital bills, nursing service, medical service, medicines, etc. and specialist fees in the total amount of $1800.00, and further prays on behalf of his minor son, Ira Dunaway, Jr., for damages in the full sum of $90,000.00.

Defendants first filed an exception of no cause and no right of action on behalf of Bogalusa Lumber Company, Inc. and G. L. Cade. As stated, after the taking of testimony, the exception of no right of action was sustained, as to the Bogalusa Lumber Company, Inc., as Cade was on a mission of his own. The exception filed on behalf of the defendant Cade was overruled by the District Cou'rt with written reasons, and we think properly, however there is no need to discuss this ruling as counsel for the defendant Cade have not re-urged same in their brief nor in their argument.

The defendant Cade’s answer was a general denial and, in the alternative, defendant plead contributory negligence on the part of Ira Dunaway, Jr. in following the defendant’s car at an unsafe and unreasonably close distance; by failing to keep a proper lookout; by operating the motor bike at an excessive rate of speed; by failing to have the motor bike under proper control; by not attempting to avoid the accident by going around the Cade car to the left, the road ahead being open and unobstructed. The defendant Cade also assumed the position of plaintiff in reconvention and prayed for the sum of $87.75, the amount of damage to his automobile as a result of the accident.

The District Judge, in a well considered and written opinion, held that the defendant Cade was guilty of negligence in not giving the hand signal as provided by the provisions of Act No. 286 of 1938, Section 3, Rule 10, Dart’s Statutes Section 5215, and also that as the defendant testified that he looked through his rear view mirror but did not see the motor bike, which the Judge found “to have been some twenty-five feet to the rear of him at the time”, that he was therefore guilty of negligence in failing to see that which he should have seen, and the Court concluded that this negligence of the defendant was. the proximate cau'se of the accident. The Court further held that Ira Dunaway, Jr, was guilty of contributory negligence in. traveling at an excessive rate of speed some twenty-five feet to the rear of the defendant Cade’s automobile and that he also, failed to keep a proper lookout and failed to have his motor bike under proper control immediately proceeding the accident. For these reasons, the District Court rejected the plaintiff’s claim and refused the-defendant’s claim on the reconventional demand and assessed all costs against the-plaintiff.

The plaintiff has appealed from this judgment and the defendant Cade has answered the appeal and asked that it be amended by awarding to him the sum of $87.75 as set forth in his reconventional demand which the Lower Court denied in. its judgment, and that in all other respects-the judgment be affirmed.

The record reveals that on May 11, 1947' Ira Dunaway, Jr., had attended a late picture show in the city of Bogalusa, and that, about 1 A.M. he was going home, traveling south on Avenue F, and that at this-time, also traveling south on Avenue F was the automobile owned and operated by the defendant Cade. Ira Dunaway, Jr. was. following Cade’s Automobile a distance of approximately 25 feet when Cade’s car came to the intersection of Tenth and Avenue F. Cade, immediately after crossing this intersection, began to slow down and' the motor bike of young Dunaway ran into the rear of Cade’s automobile. As a-, result of the accident, young Dunaway-suffered severe injuries.

The testimony reveals that on the morning in question, the defendant Cade, together with his son-in-law, Mark Endicott, and a friend, Theodore Evans, were going-fox hunting. Evans was sitting on the-front seat with Cade and Endicott was on the back seat with one of the fox hounds.. The other hounds were in the back, closed. up in the trunk of the car. Cade testified that he was traveling south on Avenue F, approximately twenty-five miles per hour, and that just as he crossed the intersection of Tenth Street and Avenue-F, one of the men-in-the car told him that he should have turned on Tenth Street to his right. He immediately began to stop his automobile and when he was approximately fifty to seventy-five feet south of the intersection and practically stopped, although his automobile was still moving, he was struck in the rear by the motor bike of young Dunaway. The pictures of the car introduced in evidence show the blow from the motor bike to have been practically in the rear center of the automobile, possibly slightly to the left of center. From this picture, it would seem that the motor bike struck the car with quite a bit of force, as the trunk is badly bent in and, according to the testimony, the bumper was slightly bent and the motor bike had run up on top of the bumper and mashed the front wheel so that it was jammed between the bumper and automobile. The motor bike was still fastened on to the car after the accident. Young Dunaway was thrown some five or six feet from the motor bike on the shoulder in the gravel.

Defendant Cade testified that he did not recall whether he held his hand out to signal or stop. We agree with the trial judge that “had the defendant given this hand signal he would have remembered it.” Cade also testified on cross examination that he had a rear view mirror on his car; that when he started to stop he looked in the mirror but he did not see anything behind him. However, on direct examination Cade contradicted his answer on cross examination in that he testified he did not have occasion to look to the rear of his car as he proceeded down Avenue F, and again on cross examination he was asked the following; ing, began to travel in reverse. Counsel for defendant Cade' contend that even though it be conceded that .Cade did not put out his hand, the warning of the stop lights on the Cade car constituted sufficient warning or notice to Dunaway of the intention of Cade to slow down or stop.' Counsel rely upon the case of Finance Security Company, Inc. v. Thurman et al., La.App., 9 So.2d 846, and Herbert v. Keller, La.App., 17 So.2d 746.

“Q. I believe on direct examination you said you were not looking and had not look•ed through your rear view mirror. A. JSTo, sir. I had not looked in it.” There is .no testimony in the record to substantiate the allegation that defendant Cade brought his car to a sudden stop and shifted it into reverse and immediately, without warn-

Evans, one of the occupants of the car; on cross examination was asked whether or not Mr. Cade had a stop light on that car, and he answered, “He had two tail lights.” Counsel ¿gain asked him, “What about a stop light?” and his answer was, “No, it was not working.”

The defendant Cade on cross examination Under the Act-• testified that his car was equipped with a, stop light that operated from the brake, and when asked if it was in operation,' answered: “I reckon so, I wouldn’t be able to see that, of course,” and he also testified that he used his brakes in coming to a stop. There were no skid marks made by the automobile on the pavement. Cade also testified that on the night of the accident, both of his head lights and tail lights were on.

Cade’s son-in-law, Endicott, testified that after the accident he checked the stop light on the automobile at Mr. Cade’s house and that it was working. Wé are inclined to believe that the stop light was working, as there is no explanation of Evan’s testimony to the effect that it was not working. Be this as it may, Cade was not relieved of his 'duty under the law to give the proper hand signal. In the case of Finance Security Company, Inc. v. Thurman, supra, the Court stated that “The signal given by the application of the brakes should have been a warning sign to the automobile following that Passman intended to make a stop at the intersection. Crane should have seen this signal.” [9 So.2d 848] However, the Court does not hold that this relieved the driver of plaintiff’s truck from giving the proper -hand signal of his intention to stop. The Court specifically held that the driver of plaintiff’s truck in this instance was negligent because he did not give a hand signal of his intention to stop and also that when he looked in the side view mirror he should have seen defendant’s car following- forty to fifty feet in his rear, and also that plaintiff had brought his car to a stop entirely on the pavement when he should have brought his truck to a stop on the shoulder and not in the lane of travel.

In the case of Hebert v. Keller, supra, the Court found the facts in that case to be that the plaintiff was following another car and that the lead car suddenly stopped and plaintiff thereupon brought his car to a sudden stop, whereupon defendant’s car ran into the rear of plaintiff’s car. Under these facts, the Court held, with Judge Ott as the organ of the Court, that “the condition of traffic and the circunistances under which young Hebert was required to stop or slow down did not require him to give a hand signal; that the mechanical stop light signal on the rear of the car was all that could be reasonably required of him under the circumstances where it was necessary for him to make an emergency stop not caused by his own acts.” [17 So. 2d 747]

In the present case, defendant was not confronted with any emergency but voluntarily brought his car to a stop in front of you'ng Dunaway, who was following him at a distance of twenty-five to thirty feet, without giving the proper hand signal. Another reason why we do not believe he gave the hand signal is because the testimony fails to show in any place that Cade knew or even suspected that this motor bike was to his rear, so there would certainly be no reason for Cade to put out his hand if he 'did not see the motor bike following him or did not know it was following him, unless by force of habit. Counsel for defendant contend that it would have served no purpose for Cade to have given the hand signal as it was night and the motor bike was traveling in the center of its lane of traffic, twenty-five to thirty feet to the rear of the Cade car, and that young Dunaway could not and would not have seen this hand signal. The facts show that it was a bright moonlight night, that this accident occurred where,the street was brightly lit up by the street light, and there would have been no reason for you'ng Dunaway not to have seen the hand signal. Also, Cade was negligent for if he looked in his rear view mirror and did not see young Dunaway, he should have seen him, and if he did not look, he should have looked, either in the rear view mirror or in some other manner, prior to stopping his automobile in the lane of traffic on the pavement without -any signal except possibly a stop light warning.

For these reasons, we are of the opinion that the judgment of the District Court in holding that the negligence of Cade was a proximate cause of the accident is correct.

We are also of the opinion that the judgment is correct in its holding of young Dunaway guilty of contributory negligence as a proximate cause of the accident. In this case, young Dunaway, as previously stated, was traveling twenty-five to thirty feet behind the Cade car on a bright moonlight night at an intersection that was lighted by a street light, when the car in front of him came to a stop, not suddenly but, as the District Judge says, slightly faster than gradually. We believe that the stop light was working and when Cade applied his brakes, certainly young Dun-away should have seen this signal and should have seen the car in front of him slowing down if he had been keeping a, proper lookout. The testimony also shows, that the Cade car came to a stop approximately fifty to seventy-five feet south of the intersection with the motor bike fastened on to it; that at a distance of approximately nine feet to the rear of the Cade-car there was a pile of dirt on the pavement, showing clearly that it was approximately at this point that young Dunaway’s, motor bike struck the Cade car. From, this point where the dirt was located, there-was a brake mark made by the motor bike, approximately six feet in length, which-shows that young Dunaway only got his. brakes applied when he was within six. feet of striking the car. Under these facts, clearly he was not keeping a proper lookout. Also, the speedometer of the motor bike was locked after the wreck at thirty-eight miles per hour. There is some testimony that it was an English instrument and the reading should have been in kilometers, however, the District Judge in his opinion used the American miles, and we see no reason to differ with him, for this speedometer was in the possession of the plaintiffs and they could have produced it and definitely established which it was, and they did not do so.

We are therefore of the opinion that young Dunaway was also traveling too close at an excessive rate of speed, under the circumstances, behind the Cade car. Young Dunaway, had he been keeping a proper lookout, could have avoided running into the rear end of defendant’s car. Under the facts, he did not have his motor bike under proper control immediately preceding the accident.

It is also shown by the record that the north lane of traffic of Avenu'e F at the time of the accident was open and clear and there was no reason why young Dun-away could not, if he had been keeping a proper lookout and had his motor bike under proper control, gone to the left and around the Cade car.

There is another contention made by counsel for plaintiff which was not raised in the District Court, to the effect that the defendant created an emergency ■and the plaintiff should be allowed to recover under the emergency doctrine as set forth by this Court in the case of Home Insurance Company v. Warren, La.App., 29 So.2d 551. We see no reason to dwell at length on this contention or cite many authorities, as this doctrine seems to be well settled to the effect that where one is confronted with an emergency and even though his or her choice of escape was not the safest or the wisest, h'e or she cannot be held guilty of negligence on that score .alone, provided the situation was one which was not created in whole or in part by such person.

Counsel for defendant Cade contend that if any sudden emergency existed at all at the time of the accident that this ■emergency arose or was created as a re-suit of-the negligent acts of Ira Dunaway, Jr. in the following respects, to-wit:

“1. By Ira Dunaway, Jr. following the Cade car- at too close a distance.
“2. By traveling at too rapid a rate of speed, which the preponderance of the evidence will clearly reveal to be 38 miles per hour at the time of the impact when the-speedometer became locked at that speed.
“3. By failing to keep a lookout which would be proper.
“4. By failing to have his motorbike under proper control so as to be able to meet any situation that might arise, and particularly is this true when Ira Dun-away, Jr. admits that he was fully aware of the presence of the car at the time of the accident and had been aware of such presence for quite some time.
“5. By failing to avoid the accident when he could have reasonably done so had he been keeping a proper lookout and had his bike under proper control.”

While we doubt that a sudden emergency as recognized by the law was created, if it was, we are of the opinion that young Dunaway at least contributed to the creation of such emergency, for this record shows that he saw the car in front of him and yet he was traveling within twenty-five or thirty feet of it at 38 miles per hour and did not notice the car coming to a fairly gradual stop until he was within approximately six feet of striking the car. If there was any emergency created, then young Dunaway contributed to its creation for all five reasons set forth by counsel for defendant in their brief, and, of course, it is clear that one who creates or contributes to the creation of an emergency is barred from recovery. Vol. 4 Blashfield’s Cyclopedia of Automobile Law and Practice, Part 2, § 2733, page 244; McCook v. Rebecca-Fabacher, Inc., La.App., 10 So.2d 512; Stromer v. Dupont, La.App., 150 So. 32; Burnett v. Cockrill et al., La.App., 145 So. 398.

For these reasons the judgment of the District Court is affirmed, the plaintiff to pay all costs.


source: Caselaw Access Project

author: LeBLANC, Judge.

license: Public Domain

text:
    PIERRE v. FARM DEVELOPMENT CORPORATION et al.
    No. 3093.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    E. H. Bostick, Jr., of Amite, for appellant.
    Reid & Reid, of Hammond, for appellees..
   LeBLANC, Judge.

On September 9, 1946, the plaintiff, Fil-more Pierre, sustained an accidental injury to his left foüt while operating a gasoline driven farm machine used to prepare-the soil for the building of tung oil sets. His suit is to recover compensation under the State Workmen’s Compensation - Law,, Act 20 of 1914 and its amendments, as for total permanent disability on account of his injury.

In his petition he alleges that he was employed by the Farm Development Corporation, which is domiciled at Hammond, in. the Parish of Tangipahoa, -and also by-James J. LaSalle, a resident of that Parish. He alleges also that the business conducted by the said defendants is a hazardous one- and that the duties he had to perform rendered his occupation hazardous. He was-receiving -wages of $3 per day for a five days-week work and therefore claims compensation at the rate of $9.75 per week for 400 weeks and medical expenses not to exceed $500.

There were several defenses presented,, the first being that the plaintiff was not engaged in a hazardous occupation as he was a farm -hand and therefore was not protected by the provisions of the Workmen’s. Compensation Act. Act No. 20 of 1914, as. amended. A second defense -is that plaintiff has completely recovered from the-slight injury he suffered and even though he were entitled to recover -compensation,, he is now in no way disabled and can perform work of a similar character and nature such as he was accustomed to do and was doing before. There .seems to have been a further defense injected during the-trial of the case, namely, that it had not been shown who was really plaintiff’s employer, the Farm Development Corporation, or the individual, James J. LaSalle. This last defense, however, has passed out of consideration as it was later conceded that the employer was Farm Development Corporation.

The case was tried on these issues in the lower court and resulted in a judgment decreeing that plaintiff was entitled to recover compensation from Farm Development Corporation at the rate of $9.75 per week beginning September 9, 1946, through .September 30, 1948, together with 8% per .annum interest on each weekly installment ■until paid. It had been made to appear ■that the defendant had paid plaintiff $10 ■per week for eleven weeks following his injury. Whether it was as compensation ■or not, is not made clear. In his prayer, plaintiff did not ask that the defendants be .given credit for that amount and the decree •of the lower court is silent as to that. In his reasons for judgment the judge merely stated that the amount had been paid. From the judgment so rendered, plaintiff itook this appeal seeking to have the period of disability increased from -the one as decreed to 400 weeks as prayed for and also suggesting that the rate of interest decreed in the judgment at 8% be amended to make it correspond to what it should legally be. It is also suggested that the defendant be given credit for the eleven weeks of compensation paid plaintiff immediately following the accident.

The only question which has a •serious aspect on the appeal is the one which relates to the extent of plaintiff’s disability. In their brief, counsel for defendant make reference to the defense which had been urged on the point that plaintiff, being a farm hand, was not engaged in a hazardous occupation but they seem to have abandoned that also, recognizing the principle, as laid down by decisions of our Supreme Court, that any employee whose duties bring him in contact with motor driven vehicles, whether the principal business of the employer be. hazardous or not, within contemplation of the statute, is protected by the provisions of the Workmen’s Compensation Law. In this case there is no dispute regarding the fact that the employer used motor driven vehicles in its farming operations; that this plaintiff was engaged as a tractor driver and that at the time he sustained the injury to his foot, he was operating some -motor driven contraption which was used to break up the soil and that it was one of the rotating teeth of this machine which drove entirely through the bottom of his foot, coming out through the top and tearing it open.

On the question of the extent and nature of the injury and the disability produced as a result, there is but the testimony of the plaintiff himself who says that since the injury he -has not been able to work 'at all although he tried to do so and had to quit. The- only work he does is to piddle around the house and to try to make a garden. The other testimony on this point consists of the reports of two doctors, one an orthopedist by the name of James L. Lenoir and the other a practicing physician by the name of James S. Andres.

Dr. Lenoir appears to have made a very serious and comprehensive examination of the plaintiff on September 25, 1947. His diagnosis was that plaintiff had old compound comminuted fractures of the left tarsus with secondary traumatic arthritis of the tarsus; healed rupture of the left tibialis anticus tendon muscle belly junction and neuroma of the plantar nerves of the left foot. Flis opinion was that the plaintiff was at that time totally disabled because of the painful arthritis which exists in his left tarsus secondary to the penetrating injury of that foot. He recommended surgical fusion of these painful joints in an effort to eliminate the pain and also that the plantar neuroma be explored and excised at the same time.

Dr. Andres examined the plaintiff on June 2nd,. 1947, and found that plaintiff experienced a slight limp when he walked, favoring his left foot. There was a completely healed scar on' the top of the foot and also a healed scar under the foot. X-rays revealed a healed fracture of some of the foot bones which he refers to as the cuboid. His conclusion was that the plaintiff had a usable foot for ordinary farm work and he was of the opinion that the pain plaintiff said he has can be corrected with further treatment.

There is some difference between the reports of these two doctors and we would say that from neither of them would we be able to conclude that this man’s foot is in such a condition that it can serve him to the same extent and for the same purpose it did before he was injured. Certainly, according to Dr. Lenoir’s report, this man is disabled, apparently from the arthritic changes which have taken place in the nerves at the location of the injury and that this causes him to suffer pain. This diagnosis is certainly supported by the testimony of the plaintiff .who says that he suffers such pain as to be unable to work since the injury and that he has to walk on the heel of his foot, not being able to put any weight on his toes. Dr. Andres’ report concedes that plaintiff may be suffering pain as he suggests treatment to alleviate it. His report makes no mention about arthritis and therefore we do not know whether he disputes Dr. Lenoir’s diagnosis on that point.

Under this testimony therefore, we are unable to make out on what basis the judge of the trial court decreed compensation in favor of plaintiff for a period which figures out to be 107 weeks only. As brought out in brief of counsel for defendant, it may be that he was of the opinion that when he rendered judgment on September 30, 1948, plaintiff was able to return to work. They, of course, contend that the disability had disappeared eleven weeks after the accident when defendant had stopped paying the plaintiff. But certainly that is not supported by the testimony found in the record, no more than is the contention that plaintiff was able to return to work on the day judgment was rendered.

We conclude that this is a case of total permanent disability and accordingly the judgment will be amended by allowing compensation for a period not exceeding 400 weeks." Proper credit of $110 should be allowed and the rate of interest corrected.

For the reasons stated it is ordered that the judgment appealed from be amended by increasing the period of compensation, from 107 weeks to a period not exceeding 400 weeks with interest at the rate of 5% on each weekly installment from maturity, and that defendant be given credit for payments in the sum of $110.

As thus amended, the judgment is affirmed at the costs of the defendant appellant.


author: ELLIS, Judge.

text:
    BERIDON v. LINDLEY et al.
    No. 3086.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    Samuel M. Robertson, of Baton Rouge, for appellant.
    Landry & Landry and Harrison G. Bag-well, all of Baton Rouge, for appellees.
   ELLIS, Judge.

Plaintiff, Mrs. Gladys S. Beridon, has filed this suit in which she has alleged that a taxicab belonging to the defendant A. A. Lindley and insured by Lloyds Casualty Insurer, co-defendant, struck her on or about the 5th day of August, 1943, and as a result. she suffered personal injuries for which she is seeking to recover damages in the amount of $36,700. Plaintiff sets forth in her petition that on or about the 5th day of August, 1943, she was driving her car east on the extension of Boyd Avenue in the City of Baton Rouge and had as her guests Gladys Mae Beridon and Herbert Vidrine, whom she was taking to the bus station as they were going to Opelousas, Louisiana, when her car ran out of gasoline and stopped; that her daughter went to a nearby telephone and called the defendant’s cab stand for a cab which was sent out; that when the cab stopped, her daughter and Vidrine put their luggage in the cab and got into the cab; that plaintiff requested the driver of the cab, a Mr. Watson, to stop at a nearby filling station on Main Street and have some gasoline sent to place in her car; that plaintiff expected the cab driver to make a right hand turn into North 13th Street, as this was the nearest route from the point where the cab had been parked to Main Street and the filling station from which the driver had agreed to order gasoline for plaintiff, and it was also the logical route for the cab to take to deliver its passengers to the bus station; that acting upon this assumption, plaintiff started walking on Boyd Avenue to her automobile and had reached a point near the middle of the intersection of Boyd Avenue and North 13th Street when the driver of the cab which had cleared the intersection and was completely ’in North 13th Street suddenly stopped his cab and, without looking back,' • or sounding his horn, backed the cab up rapidly and struck the plaintiff and dragged her approximately 20 feet; that as a result of the accident she suffered severe injury of the left sacro-illiac joint and an hyper-trophic arthritis in the region of the left sacro-illiac joint. Plaintiff alleged in the alternative that if this arthritis was preexisting, then and in that event it was aggravated by the injury; that she has been compelled to employ physicians to treat her and will continually need medical 'treatment for which she asks the sum of $2500. She further set forth. that she was running a boarding house at the time of the injury from which she earned a profit of $75 each month and because of her injury, she has J>een permanently disabled from doing this work and will be deprived of $75 per month for the balance of her life which she alleges has an expectancy of 32 years and nine months, and therefore claims the sum of $26,200 for this item; that she has suffered and will for the balance of her life suffer exquisite pain as a result of this injury or the aggravation thereof, for which she claims $7,800, or a total of $36,700.

The defendants, through 'their counsel, excepted to the plaintiff’s petition on the gróund that the allegation in Article 5 of plaintiff’s petition that the accident occurred on August 5, 1943, is erroneous and defendants allege that the accident occurred on August 1, 1943, and'that consequently plaintiff’s demands' were prescribed by the prescription of one year.

The minutes of the Court for October 23, 1944, are as follows:

“The case was taken up on plea of prescription filed herein. Evidence was introduced, and the Court,.for oral reasons, referred said plea to the merits of the case. Case assigned for trial, by consent of counsel, on December 14, 1944.”

The case was then taken up on its merits and tried and the judge, with written reasons, reached the conclusion that the preponderance of the evidence “was that the accident .complained of occurred on the first day of August, 1943. As the suit was not filed until August 6, 1944 (should be August 5, 1944), plaintiff’s cause of action is prescribed.” The Lower Court therefore sustained the plea of prescription and dismissed the suit at plaintiff’s costs.

From this judgment, plaintiff has prosecuted this appeal.

In this case, it was shown that the plaintiff, Mrs. Gladys S. Beridon, operated a boarding house in the city of Baton Rouge, and on the date of the accident intended to take her daughter, Gladys Mae Beridon, and one of her boarders, Herbert Vidrine, to the. bus station as they intended to go to Opelousas, Louisiana. She was driving her automobile and it gave out of gas, and her daughter accordingly phoned the defendant cab company. In response to this call, a cab driver by the name of Bob Watson came to the place where plaintiff’s car was stopped and picked up plaintiff’s daughter ana Vidrine in order to take them on to the bus station. The cab backed up and struck the plaintiff who was walking behind him.

Mrs. Gladys S. Beridon, the plaintiff herein, was called under cross examination on the trial of the plea of prescription and testified that the accident happened on Au.gust 5, 1943, and that she arrived at the date of the accident by reason of the fact that her daughter was going to Opelousas and she had some letters while she was gone indicating the date and that the date ■of the accident was on Thursday. Mrs. Beridon at this time denied making any statement to her attorney, Mr. Litton, whom she first employed and who went into the service prior to filing the suit, and thereafter the suit was turned over to present counsel. However, she denied making .any statements to Mr. Litton, to Dr. Kern .and to her present attorney. Mr. Sam Robertson, that the accident occurred on August 1st and at that time stated that she was positive that she had not made any such statement. She further testified that she knew it happened in the morning for the •reason that her daughter and a boarder .at her home, Mr. Vidrine, were going to •Opelousas and were going to catch the 10:30 A.M. bus on Thursday.

A. A. Lindley testified that he was the owner of the Capitol Cab Company and that at the time of the accident, Mr. Bob Watson was employed as one of his drivers and that Watson had an accident while driving his taxicab. Lindley testified that his company kept a daily report in the form of a card upon which is shown the time the driver leaves, the time he returns, .and the amount of passengers hauled, and that these drivers were paid daily on a commission, basis. He testified that these ■cards were prepared under his supervision but by B. E. Norwood, an office boy. Nor-wood was placed on the stand and testified that cards of the Capitol Cab Company for August 1, 2, 3, 4 and 5, 1943, were prepared by him and showed the trips made by M. B. Watson from August 1st through August 5th, 1943. Norwood, in response to a question by Counsel as to how he knew that Watson made the trip on August 1st to plaintiff’s house, stated: “He came back and reported the accident.” The card of August 1, 1943, shows a trip to Boyd Avenue and that the cab left at 2:45 and returned at 3:00. These cards do not show any other trip to Boyd Avenue between these dates.

Defendants next offered the testimony of M. B. Watson, the driver of the cab involved in the accident, who testified that •he did not remember the exact date but that it was on a Sunday and he remembered that it was Sunday because he could-n’t get any gas.' Mrs. Beridon had asked him to get some gas for her and, as it was Sunday, the stations were closed. He did not say whether the accident was on the 1st or the 5th but was positive in his testimony that the accident was on a Sunday and not on a Thursday. He identified the cards introduced in evidence as being the usual type cards made out and that he was interested in these cards as he. was paid daily on a commission basis. He was also positive in his testimony that he made this trip along about the first of August because he had just started working steady for the defendant, and further stated that if he had gone to Boyd Avenue on another occasion on those dates, the cards would show it. Another reason that he gave for remembering it which, in our opinion, was a good one, was the fact that this was the first accident “I ever had.” He testified that this trip was on a Sunday afternoon. This witness testified that after the accident, Mrs. Beridon got in his cab or was put in his cab and rode about a block to the front of her home. In connection with this witness’ testimony, his written statement, made on September 27, 1943, was offered in evidence and in this statement he stated that on or about the first day of August, 1943, he was driving for Capitol Cab Company and during the afternoon he made the trip to Boyd Avenue and it was at this time that he struck the plaintiff.

Mrs. Marie Thibodeaux, witness on behalf of the defendants, testified that she was employed by Hawthorne, Waymouth & Payne, auditors, as secretary but that she did some bookkeeping, of course, which consisted in making a work sheet from the daily cards such as were introduced in evidence, and she identified her work sheet which had been made from the cards introduced in evidence and stated that the information on the work sheet was the same as that shown on the cards.

Counsel for defendants at this time also introduced a letter from Mr. Robertson, present attorney for the plaintiff, addressed to counsel for defendant, Baggett and Williams, and in this letter, which was a demand for payment of plaintiff’s damages in the sum of $37,064, Mr.. Robertson stated that her injuries were due to or aggravated by the accident which occurred “on or about the first day of August, 1943 * *

Plaintiff offered as a witness, Miss Gladys Beridon, daughter of the plaintiff, and she testified that, she was with her mother when she was hurt by the taxicab; that she knew that the accident happened on Thursday, August S, 1943, and she knew it was Thursday because her “kid sister was at school and she would not have been at school on Sunday, and my other sister was working and she came in for lunch just before we left and I know I didn’t go to church that morning and I would have gone if it had been Sunday, around ten or eleven o’clock, and I know I arrived in Opelousas that afternoon.” She also testified that she had received a letter from Wilda, Louisiana, in response to a letter she had written a friend of hers in which she told her that by the time she received the letter she would be married. She introduced in evidence an envelope postmarked August 9, 1943, from Wilda, Louisiana, addressed to Mrs. Frank Oslen, 972 Boyd Avenue, Baton Rouge, Louisiana. There is no explanation of why the letter is addressed to “Mrs. Frank Oslen”, however, we can only presume that she must have told' her friend that she would be Mrs. Frank Oslen, She testified that this letter was kept by her mother until she returned from Opelousas on the following Thursday, which would be August 12th. We fail to see wherein this letter would establish August 5th as the date of the accident. We note that the District Judge also stated that he could see no connection between this letter dated August 9th and the date of the accident and sustained .counsel’s objection to the effect that it was not relevant and had no connection with the date of the accident. It would' appear that it should not have been filed; howeverj it does no harm. The. testimony of Miss Gladys Beridon is not convincing.

On the trial, on the merits, counsel for defendants offered in evidence the original statement of Mrs. Beridon, plaintiff,, which was in the.handwriting of Mr. Dupre Litton under date of September 10, 1943, and who was the attorney for the plaintiff at that time and prior to ■ his entering the service. In this statement, which is signed by Mrs. Gladys S. Beridon, plaintiff states, that the accident occurred “on or about the-first of August.”

Also offered is a statement dated September 10,. 1943, and signed by Herbert Vidrine and Gladys Mae Beridon which states: “We have read Mrs. Gladys S. Beridon’s. statement made this day and can verify every dptail of it. ; In particular, the cabdriver backed into Boyd Avenue without, giving any signal and without looking back to see where Mrs. Beridon was.”

Also filed in evidence by the defendant is a copy of a letter dated September 7, 1943,. addressed tó Capitol Cab Company and signed “Albritton, Ware & Litton, by -,” in which they state that plaintiff was injured when a taxicab driven by one of Capitol Cab Company’s drivers backed, into her “on or about August 5, 1943.” It will be noted, however, that this letter is dated September 7th or three days prior to the statement of September 10, 1943,. signed by Mrs. Beridon and verified on the-same date by signed statement of Herbert Vidrine and Gladys Mae Beridon.

On the trial on the merits, Dr. Lawrence J. Kern was called as a witness on behalf of the plaintiff and testified thp.t Mrs. Beridon gave him the date of August 1, 1943, as the, time of her injury, and that he was positive that that was the date she stated as “That is the only way I could have gotten it,” and counsel asked this witness if it was not possible that she could have said “ ‘on or about August 1’ and you put it August 1,” to which he answered, “No. She told me August 1st. That is what I have got here.” He was positive in his testimony as to the date given him by Mrs. Beridon, and defendants have offered .a copy of letter dated March 10, 1944, addressed to Mr. Sam Robertson, counsel for plaintiff, from L. J. Kern, M. D., in which the subject was, “Re: Mrs. Gladys Beri-don” and in which Dr. Kern stated, “On August 1, 1943, the above named was knocked down by a cab * * *.”

Dr. J. L. Godfrey, called as a witness on 'behalf of the defendants, testified that he had examined Mrs. Beridon on the 5th day •of June, 1944, and that she had stated to him, “that early in August, 1943 she was involved in an automobile accident and received back injuries. * * * ”

Mrs. Gladys Beridon, when placed on the stand on the merits, testified that the accident occurred on the 5th day of August, 1943, but that she did not know ■exactly the day of the week, however, it was the middle of the week because “my little girl goes to school and she was not at. home with me.” It will be noted that when this witness testified on the plea of prescription hearing, she definitely stated in response to “What day of the week was it ?” that .“It was on Thursday.” Furthermore, this witness did not mention her little girl in her testimony on the trial of the plea of prescription.

Miss Gladys Mae Beridon also testified on the merits and the Court questioned her as to the date, and she stated that she ber 'lieved it was August 5th. The Court then asked her: “Do you think or do you. know?” Her answer was “I am almost positive of it.” The Court further asked her, “How do you arrive at that?” Her answer was, “I know, because I was in Opelousas at the time.” This is not very convincing testimony, especially in view of the written and positive testimony to the contrary.

Herbert Vidrine did not testify but the plaintiff testified that she had made an effort to get him and had promised to pay his expenses if he would come, but that he did not show up.

From this testimony, we are convinced that the judge was correct in his judgment when he stated that the preponderance of the testimony was to the effect that the accident occurred on August 1, 1943, and not on August 5, 1943, and, as the suit was filed on August 5, 1944, that the plea of prescription should be maintained. The testimony of the plaintiff and her daughter cannot stand in the face of the documentary- evidence offered and their contrary statements made within a short period after the date of the accident.

It is evident that the Trial Judge did not give much probative value to the testimony of the plaintiff and her daughter, and as the question in this case is one of fact, the Trial Judge’s opinion is entitled to great weight, and as we can find no manifest error in his judgment, it is hereby affirmed.


author: PONDER, Justice.

text:
    214 La. 876
    SLATTERY CO., Inc. v. F. W. WOOLWORTH CO.
    No. 38871.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Hussey & Smith, J. B. Davis, and Harry A. Johnson, Jr., all of Shreveport, for plaintiff-appellant.
    Herold, Cousin & Herold, of Shreveport, for defendant-appellee.
   PONDER, Justice.

In this suit the plaintiff seeks to annul and set aside a contract. The plaintiff asks, in the alternative, for damages for breach of the contract and, in the further alternative, for the reformation of the contract. The suit was dismissed in the lower court by judgment sustaining exceptions of no cause and no right of action and the plaintiff has appealed.

The defendant leased a store building in Shreveport from the plaintiff under a written contract for a period commencing January 1, 1927 and ending May 1, 1947 at a rental of $33,000 per year for the first five years, $36,000 for the next five years, and $40,000 a year for the balance of the term. ■ On December 2, 1937, prior to the expiration of the leáse, a written agreement was entered into between the parties, the pertinent part of which reads as follows:

“Whereas, the F. W. Woolworth Co. desires to enlarge its store, by utilizing certain portions heretofore sublet to others, air-condition parts of same, and make certain alterations and improvements in the front and other portions of said premises, the cost of which it wishes to amortize over a longer period than the term provided in the existing lease.

“Now, therefore, in consideration of the premises, and the valuable alterations and improvements to be made on the property by the tenant, F. W. Woolworth Co., the landlord Slattery Co., Inc., agrees that said lease be and the same is hereby amended by this addenda, to create an extension of the lease for an additional period of ten years from May 1st, 1947 to May 1st, 1957, at the same stipulated rental as provided in the lease, to-wit: ($40,000.00 per year divided into monthly payments of $3,333.33 per month, in advance as set forth in said lease.

“It is further understood that upon the execution of this addenda, the F. W. Woolworth Co., is authorized to proceed with the making of all necessary improvements at its own cost and expense and in accordance with its own plans and specifications prepared by its architect. F. W. Woolworth Co. agrees upon the completion of such alterations and improvements, to notify Slattery Co., Inc., of such fact, and to furnish Slattery Co., Inc., with a lien and privilege certificate indicating that no liens have arisen out of such alterations and -improvements.”

It is alleged in the- petition that •the consideration for this second agreement was the promise of the -tenant to construct improvements on the building of the value of $91,000. The plaintiff alleges that the agreement is null because of a potestative condition in that the defendant had not obligated itself to construct the improvements and alleges that the agreement should -be set aside because the defendant has violated a binding agreement to construct the improvements. Two contradictory causes of action are alleged in the main petition and they are not set forth in the alternative. One cause of action is based on the ground the agreement is not binding because of a potestative condition and the other cause of action is based on the breach of a binding contract. These causes of action could have been set forth in the alternative, but since they were not the plaintiff should .have been required to elect upon which cause of action it should pursue. Nichol v. Jacoby, 157 La. 757, 758, 103 So. 33. The contradictory allegations are based on two different interpretations of the contract and not upon contradictory allegations of fact. Under such circumstances, the plaintiff’s suit should not be dismissed, but the plaintiff should have been required to elect which he desired to pursue. Under this view, it is necessary to remand the case because we cannot elect which cause of action the plaintiff should pursue as the plaintiff alone has that right.

The tendency of modern practice is to yeild as little as possible to technicalities and to be more liberal in upholding substantive rights instead of subtle technicalities. Southport Mill v. Friedrichs, 167 La. 101, 118 So. 818; Reeves v. Globe Indemnity Company of New York, 185 La. 42, 168 So. 488; Bates v. Prudential Insurance Company of America, 192 La. 1029, 190 So. 120; and City of Gretna v. Gulf Distilling Corporation, 207 La. 719, 21 So.2d 884.

It is contended that, a copy of the agreement having been attached to the petition, the terms of the agreement should be considered in passing on the exceptions. It is urged that the agreement is indefinite and not binding. While on the other hand the plaintiff contends that parol testimony is admissible to explain the extent of the obligation. These are matters to be taken up on the -trial of the merits.

For the reasons assigned, the'judgment is reversed and set aside; the case is remanded to the lower -court to be proceeded with consistent with the views herein expressed, with the right of the parties to the controversy to file whatever pleadings they deem appropriate to a proper determination of the cause. All costs to await the final disposition of the case.

O’NIELL, C. J., does not take part.


author: -HAMITER, Justice.

text:
    214 La. 881
    SMITH v. SMITH.
    No. 38915.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Anna Andollina, of New Orleans, for plaintiff-appellee.
    Robert E. Baird, of New Orleans, for de f endant-app ellant.
   -HAMITER, Justice.

Because of the regrettable, as well as unusual and unnatural, defense offered herein on behalf of and by the wife in resisting the demand of her husband for part time custody of her child, we prefer not to indulge in an extended discussion of this action which was instituted by the husband primarily to recover a judgment of separation from bed and board on the ground of abandonment admitted by the wife.

It is sufficient to say fhat the appeal presents the single legal question of whether the wife has the right to contest her husband’s paternity of a child born during the marriage (presumed to be his under Revised Civil Code Articles 184 and 186), and to announce our conclusion, supported amply by the hereinafter cited authorities, that the able trial judge correctly answered such question in the negative. See Revised Civil Code Articles 184 to 192, inclusive; Eloi v. Mader, 1 Rob. 581, 38 Am.Dec. 192; Dejol et al. v. Johnson, Administrator, 12 La.Ann. 853; Succession of Saloy, 44 La.Ann. 433, 10 So. 872; Succession of Flynn, 161 La. 707, 109 So. 395.

The judgment is affirmed.

O’NIELL, C. J., does not take part.


text:
    214 La. 883
    STATE v. FARLEY.
    No. 39252.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Appeal- from Third Judicial District Court, Parish of Lincoln; E. L. Walker, Judge.
    C. F. Farley was convicted of offense of engaging in business of storing and handling intoxicating liquors for purpose of sale, and he appeals.
    Barham & Elder, of Ruston, for appellant.
    Bolivar E. Kemp-, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Truett L. Scarborough, Dist. Atty., of Ruston, for appellee.
   PONDER, Justice.

The defendant was convicted of the offense of engaging in the business of storing and handling intoxicating liquors for the purpose of sale in violation of Ordinance 188 of the Police Jury of Lincoln Parish. He was sentenced to serve thirty days in jail, to pay a fine of $500 and costs and, in default of the payment of the fine and costs, to serve four additional months in jail. He has appealed from the conviction and sentence.

One bill of exception is presented on this appeal. It was taken to the overruling of a motion for a new trial, with the transcript of the testimony attached.

Counsel for the defendant contended in the lower court, and here contends, that the testimony and the entire record fail to show any evidence to support the conviction.

The evidence shows that the defendant purchased a case of whiskey, containing forty-eight one-half pint bottles, -at Monroe where the sale of liquor is not prohibited and, on his return from Monroe, he parked his car at his home in the town of Dubach. The town marshal, upon finding the case of whiskey in the defendant’s car, arrested him and the defendant was charged with violating the police jury ordinance.

In this case the State relied solely on the possession of the whiskey as constituting the offense. The defendant testified that he was engaged in the insurance business in the vicinity of Tallulah and returned home every week-end. He testified that he was accustomed to drinking and bought the whiskey in small containers because it was more convenient for his use. He testified that he had never been arrested in his life. His testimony was not contradicted in this respect.

In the absence of any testimony tending to show that the defendant was engaged in the business of handling and storing intoxicating liquors for sale, the mere possession of a case of whiskey cannot support a conviction of the offense charged. State v. Bernard, 204 La. 844, 16 So.2d 454 and State v. Jordan, 207 La. 78, 20 So.2d 543.

For the reasons assigned, the conviction and sentence are set aside.

O’NIELL, C. J., does not take part.


author: FOURNET, Justice.

text:
    214 La. 885
    STATE v. DAVIS.
    No. 39196.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Manuel Davis was convicted of illegally carrying a weapon, and he applies for writs of certiorari and mandamus.
    Conviction and sentence annulled and set aside and information quashed and accused discharged.
    C. A. Blanchard, of Donaldsonville, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Aubert L. Talbot, Dist. Atty., of Napoleonville, and Geo. R. Blum, Asst. Dist. Atty., of Donaldson-ville, for plaintiff and appellee.
   FOURNET, Justice.

The relator, Manuel Davis, having been charged in a Bill of Information with illegally carrying a weapon in that he “did wilfully and unlawfully and intentionally conceal on or about his person a dangerous weapon — to-wit a large knife,” moved to have this information quashed before going to trial, contending it is fatally defective because a knife is not made a dangerous weapon per se under the statute and the knife in the information is not described as “one customarily used as a dangerous weapon.”

The illegal carrying of a weapon as pertinent here -is defined in Section 1 of Article 95 of the Criminal Code to be “The intentional concealment of any firearm, or other instrumentality customarily used as a dangerous weapon, on one’s person”. It will be noted that the gravamen of the offense is the concealment on one’s person of an instrumentality customarily used as a dangerous weapon, and not the carrying of an instrument which might be so used.

In order to insure that an accused will secure the protection guaranteed in the Bill of Rights that he will be informed in writing of the nature and cause of the accusation against him, the legislature, in adopting Article 227 of the Code of Criminal Procedure, provided that “The indictment (or information) must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.” (Brackets ours.)

It is obvious the information in the instant case not only fails to state any fact or circumstance necessary to constitute the offense, but, also, fails to use any words that convey the same meaning. It is, therefore, in our opinion, fatally defective. State v. Nelson, 38 La.Ann. 942, 58 Am.Rep. 202; State v. Pellerin, 118 La. 547, 43 So. 159; State v. Garon, 158 La. 1014, 105 So. 47; and State v. Varnado, 208 La. 319, 23 So.2d 106.

In the Nelson case the accused was charged with carrying a razor under Section 932 of the Revised Statutes which penalized anyone who carried any “weapon or Weapons concealed on or about his person, such as pistols, bowieknives, dirks, or any other dangerous weapon”. In sustaining the motion to quash the indictment in that case the court declared that “ * * * the meaning of the statute, unmistakably, is the carrying of a weapon eo nomine, and concealed. It must be a dangerous weapon per se — such as a bowie-knife, pistol, or dirk; and this must affirmatively appear upon the face of the indictment itself,” concluding that a razor, the instrument named in the indictment, “is an instrument or implement appertaining to the toilet, or shop. It has a well-known and specific use to which it is ordinarily applied. It is not known, or usually' sold in market as a weapon. It may be quite as easily and conveniently carried in the" pocket as a penknife, and when thus carried is effectually concealed from public open view. Under such circumstances the concealment of one would be. just as pernicious as the other.”

Counsel for the state contend the information in this case is legal since it was drawn under Article 235 of the Code of Criminal Procedure, as amended by Act No. 147 of 1942, wherein it. is provided that an accused may be charged by simply giving the article number and the name of the offense committed in all crimes wherein the short form of the indictment and information has not been specifically set out. This contention is without merit for, even conceding without deciding that such an information is legal, the information in this case does not fall into such a category; it not only fails to charge the defendant by using the name of the offense sought to be charged, i. e., the illegal carrying of weapons, but it also fails to give the number of the article of the Criminal Code denouncing that particular offense.

For the reasons assigned the conviction and sentence of the relator, Manuel Davis, is annulled and set aside and it is now ordered, adjudged, and decreed that the information be quashed and the accused discharged.

O’NIELL, C, J., takes no part.


author: DORE, Judge.

text:
    Mrs. Estelle D. HARTMAN v. Buffington S. MAYER, Jr., et al.
    No. 3090.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Benj. W. Miller and A. J. Jones, both of Bogalusa, for appellant.
    Harrison G. Bagwell and Taylor, Porter, Brooks & Fuller, all of Baton Rouge, for defendant Buffington S. Mayer, Jr.
   DORE, Judge.

For the reasons this day assigned in the consolidated cases of Mrs. Estelle D. Hartman v. Buffington S. Mayer, Jr., et al., and Buffington S. Mayer, Jr. v. Joseph H. Slaughter et al., La.App., 39 So.2d 166, it is ordered that the judgment in the above numbered and entitled cause in favor of the plaintiff and against the defendant, Joseph H. Slaughter, be amended by reducing the award made from the sum of $15,-142.85 to the sum of $10,642.85 and as thus amended it be affirmed. The costs of this appeal to be paid by plaintiff and all other costs to be paid hy defendants.


text:
    MAYER v. SLAUGHTER et al. HARTMAN v. MAYER et al.
    Nos. 3090, 3091.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    See 40 So.2d 47.

      Benj. W. Miller and A. JV Jones, both of Bogalusa, for appellants.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   DORE, Judge.

These two cases arise out of an auto-mohile collision which occurred on Monday, November 10, 1947, at about 5:30 P. M., in Livingston Parish, on Highway No. 190, just a short distance west of the settlement of Sa'tsu-ma. These cases being, based on the same accident and involving the same facts were consolidated for trial, with the understanding that separate decrees would be rendered in each case.

It is shown that on 'the date, time and place above recited one Elliott M. Hartman was driving west on Public Highway No. 190 in his 1933 pick-up Chevrolet truck, and that Verlon Maginnis, an employee of Dr. Joseph H. Slaughter, while in the course and scope of his employment, was also travelling west on the same highway in the rear of the Hartman truck. Travel-ling east on the same highway was a Chevrolet automobile owned and operated by Buffington S. Mayer, Jr. It is shown that immediately west of Satsuma the highway is straight for a distance of approximately two miles, with a slight southwest curve at the western end of this two-mile stretch. At approximately the middle of this two-mile stretch the Slaughter truck being operated by McGinnis struck the rear of the Hartman truck, pushing it into the south or left lane of said highway, and immediately thereafter, the Chevrolet automobile driven by Mayer, crashed broadside into the right of the Hartman truck.- As a result of said crash it completely demolished the truck and knocked it around so that it came to rest on the south side of said highway, facing in a north by northwesterly direction. As a result of this double collision Mr. Hartman suffered injuries from which he died on November 14, 1947, and Buffington S. Mayer, Jr;, suffered personal injuries and damages to his automobile.

The widow of Elliott M. "Hartman, Mrs. Estelle-D. Hartman, filed suit against Buf-fington S. Mayer, Jr., and Dr. Joseph H. Slaughter, based on the allegations that the accident was caused solely by gross negligence, including specific acts of negligence set forth in the petition, of McGin-nis operating the Slaughter truck in the course and scope of his employment, and of Buffington S. Mayer, Jr., operating his own Chevrolet automobile; that as a result of the accident, she, as the surviving widow of Elliott M. Hartman, suffered total damages in the amount of $43,142.85, which amount is itemized in her petition. She prays for judgment, in solido against the said defendants, Buffington S. Mayer, Jr., and Dr. Joseph H. Slaughter.- ■

Buffington S. Mayer, Jr., in tum, filed suit against Dr. Joseph H. Slaughter and Verlon McGinnis, alleging that the accident was caused solely by the gross negligence of Verlon McGinnis, including specific acts of negligence set forth in the petition, and that Verlon McGinnis was operating the Slaughter cattle truck iif the course and scope of his employment by Dr. Slaughter. He further alleges in his petition that the Slaughter cattle truck was covered by a policy of public liability insurance, issued by an insurance company unknown to petitioner, but well known to Dr. Slaughter, and reserves the right to make the insurer an -additional defendant in his suit.- This plaintiff alleges that he sustained, as a result of the accident, damages itemized in his petition, in the sum of $10,381.81.

The defense is to the effect that the collision of the Slaughter truck with the Hartman truck was unavoidable for the reason that the Slaughter truck was being driven at a reasonable rate of speed with proper lights and in a proper mechanical condition and that the Hartman truck ■could not be seen in time to avoid' the accident for the reason that it was proceeding very slowly and- without any taillight and for the further reason that Mc-Ginnis, the driver of the Slaughter truck, was blinded by the bright lights of the on-coming Mayer automobile. The defendants contend that the- collision between the Slaughter truck and the Hartman truck caused only minor damage to the two trucks and that the real cause of the second crash between the Mayer automobile, and the Hartman truck which resulted in the death of Hartman and personal injuries and automobile damage to Mayer was the gross negligence of Mayer in travelling on a wet highway at an excessive speed with his bright lights burning and in failing to stop or slow down when he saw or should have seen the crash between the two trucks. The defendants deny that McGinnis was guilty of any negligence which was the proximate -cause of the accident and in the alternative, in the event that the Court should find that McGinnis was negligent, they plead contributory negligence on the part of Mayer and on the part of the deceased Hartman in bar of recovery.

After trial of the case the trial judge, for written reasons assigned, cam-e to the con7 elusion that the accident was caused solely by the negligence of Verlon McGinnis while in the course and scope of his employment by the defendant Slaughter, and accordingly he tendered judgments as follows:

In favor of Mrs. Estelle D. Hartm'an against Dr. Joseph H. Slaughter in the total sum of $15,142.85, itemized as follows:
Medical Expenses.$ 252.50
Funeral Expenses . 390.35
For mental pain and suffering of the deceased . 1,000.00
For the lo-s-s of her husband’s love and affection and companionship and the loss o-f her husband’s earnings and support .. 13,500.00
Total. $15,142.85
In favor of Buffington -S. Mayer, Jr., against Dr. Joseph H. Slaughter and Verlon McGin-nis, in the total sum of.$ 2,181.81
being $278.35 for medical expenses, $888.46 for damage to the auto-m'obile; $15.00 for towage,- $850.00 for pain and suffering and mental anguish, and $250.00 for permanent disfiguration, plus legal interest and costs.

The defendants have appealed both cases.

No answer to the appeal was filed in -the Hartman case, but a brief was submitted setting forth the judgment below should be affirmed as against the defendant Joseph H. Slaughter and pointing out that the insurer of Slaughter, through counsel, introduced a true and conformed copy of public liability policy covering the said defendant’s truck and admitting that should its assured be cast in judgment, it had a liability up to $10,000.00 as to one -claim or overall liability up to $20,000.00 for all claims arising out of one -accident. Since the plaintiff, Mrs. Estelle D. Hartman, has not appealed the judgment in her case, insofar as the other defendant, Buffington S. Mayer, Jr., is -concerned, he is in the same position in so far as the -appeal is concerned, as if he had never been sued.

The plaintiff Buffington S. Mayer, Jr., -answered the appeal in his case setting forth that the judgment should be increased from $2,181.81 to $4,181.81, and praying for said increase in the amount of the award. As set forth in his brief, this plaintiff feels that the award for his pain, suffering and injuries, disability and permanent disfigurement, should be increased from $1,000.00 to $3,000.00, which, added to his actual damages for medical expenses and automobile damage, would make his award $4,181.81.

The main question involved in -these two suits is whether or not 'the trial judge committed any manifest error in his finding of fact that the accident was caused solely by the negligence of McGinnis, the truck driver of Dr. Slaughter. In order -to determine this question it appears appropriate to summarize the evidence of this voluminous record, as follows:

John Lewis, an employee of Dr. Slaughter, testified that he accompanied Verlon McGinnis in the Slaughter truck on the trip when the -accident involved took place ; that they left Plaquemine that morning and had arrived at Bogalusa at about 11:00 or 11:30, and that -on their return trip they left Bogalusa at about 1:30 or 2:00 o’clock in the afternoon and arrived at Hammond at exactly a quarter of 5:00; that “we werft that 15 minutes to get a -sandwich, -around 5:00 o’clock we got this sandwich, ate it, and went on.” He adds that when they reached the place where they got the sandwiches it started to rain hard, and as they kept driving towards Baton Rouge, it kept on raining. He states that he could not see through the windshield on his side, and it is admitted that there was no windshield wiper on his side. He states that they were travelling at about 35 miles per hour and that he did not see anything when the accident happened; that he just heard the lick, and then after that he heard another; that he thereupon exclaimed “Oh, Mr. Buddy (McGinnis) what are we going to do ?” that -they sat there together for a minute and Mr. Mc-Ginnis then suggested that they go see what happened and that be saw a young man (Mayer) coming out of the other car and asking for help, and that Mr. Buddy walked up to the young man, and he put his hand on Mr. Buddy’s shoulder and Mr. Buddy flagged a truck and asked the occupants to carry the young man to the doctor; that they found Mr. Hartman in the pick-up truck and that he and two other men took him out of the truck and put him in a car belonging to the two men, and that these men carried 'him to the doctor. He states that after the collision the Mayer Chevrolet was on the south lane of trafile headed east, and the Hartman truck was off the pavement on the south side, headed northwest; that the truck in which he was riding passed the truck that they hit about 15 or 20 feet; that after the collision, the Chevrolet car was still on the highway about 10 or 15 feet behind their truck. Being asked the question whether he heard any brakes or anything on the highway, he answered that the only thing he heard were the two licks.

He estimates that the second impact occurred about three to five seconds after the first impact. He was tested on this point by the Court and counsel who made him strike a pencil on the desk indicating the first and second impact, and on this test repeated several times, the time varied from three to five seconds.

Mr. McGinnis testified that he was 27 years of age, and had been employed by Dr. Slaughter for some 7 years as truck driver, tractor driver and hauling cattle; that he had been driving the particular Chevrolet semi-trailer truck involved in this accident since 1945; that the occasion of the trip on the day of the accident was to bring a load of hay from Plaquemine to Bogalusa, a distance of about 125 miíes, and that they arrived at Bogalusa at about noon. On the return trip he too states that they arrived at Hammond at a quarter to five, as shown by the bank clock; that his truck was equipped with a windshield wiper only on the driver’s side, and that it was working properly, and that the truck itself was in first-class condition; that ■ at the time they left Hammond it was raining and that they travelled at about 30 to 35 miles per hour and had not passed much traffic; that the accident happened on a straight stretch after they passed the settlement of Satsuma headed west, at about six o’clock P. M., after dark and while it was raining steadily; that he did not see the Hartman truck until he was within a few feet thereof because the truck had no 'taillight and because the lights of an on-coming car (the Mayer car) blinded him. He states that the Hartman truck was only about 12 feet in front of him when he saw it and that it was hardly moving, and when he did see i't he hit his brakes and pulled to -the right, and that the left front of his truck hit the right rear of the Hartman truck, and that the Hartman truck then swerved to the left side and that his truck rolled by and he then put it in low gear and pulled it off of the road. He says that the car that blinded him had not passed him at the time that he struck the Hartman truck. He testifies that the on-coming automobile failed to dim his light, but upon further questioning on that point he states: “I don’t believe he did”. He admits that he was having difficulty with his windshield fogging up that night. He further testifies that just a few seconds or so after the collision between his truck and the Hartman truck, he heard the second impact; that at the time of the second impact he had passed the Hartman truck. He admits that after the impact of his truck with the Hartman truck, he continued about 30 feet farther.

He states the on-coming Chevrolet was travelling pretty fast, but that he did not see the actual collision of the Chevrolet with the Hartman truck, but heard the-impact and that after he stopped his truck, having driven it on the shoulder, he went over to the Chevrolet car and there sa-w young Mayer, and seeing that he was hurt and 'asked to be taken to a doctor, he placed him in a pick-up truck that came by right after the accident and had him taken to a doctor. He then went to the Hartman truck and found Mr. Hartman in ■ an unconscious state and thought that he was dead; that Hartman recovered consciousness, and complained of pain and groaned and asked for someone to get his wife. He was asked whether he remembered when Police Sergeant Martin-and Trooper Riles came to ge't. a report on the case, and he said “Yes”, that they were there that night; but,he denies that they are correct in saying that his truck was 300 feet from the point of 'the collision. Upon being asked the question by the Court “You testified that you were blinded by the lights of an oncoming car?” . Pie answered “Yes”. The Court: “Can you estimate how far away the car was when it blinded you?” Answer: “Just as it came around the curve.” He then adds that he does not know how far the curve was from the scene of the accident, and states that he hit the Hartman truck “a few seconds or a few minutes” after he was blinded, and that on being asked how far he traveled after being blinded, he states “Not too far”. On further cross-examination, he admits-that the.Mayer automobile would have to be a mile or more away when he rounded the curve and came in view, and during all of this time he was blinded by the lights of Mayer’s automobile. Thereupon, in answer to the question “And ye't you did not stop your car until after the collision?” H® answered: “Right after I was blinded the pick-up truck was in front of -me”. Upon being asked “and it is also true, is it not, that when you were first blinded by the lights that you could have stopped your truck and pulled off the side of the road?” he answered, “When the lights first came -upon my face I could not see,- but I thought I was able 'to keep my distance.” He admits that he asked for “dimmers” and kept on driving all the time regardless.

Trooper Riles testified that he investigated the accident some 25 minutes after its occurrence, together with Sergeant Martin; that the only person he interviewed was Mr. McGinnis; that he found that the Slaughter truck was completely off the ■highway with the front some 300 feet from the scene of the accident, with its parking lights turned on. He states that his report shows that Mr. McGinnis made a statement to him to the effect that he was blinded momentarily by the lights of the Mayer automobile and that he did not see the I-Iartman -truck, which was travelling west (sa,me direction as his own truck). He adds that McGinn-is also stated that as a result of being blinded he struck the Hartman truck causing it to swerve in the path of the Mayer car. This statement by McGinnis was made some 25 minutes after the -accident. He corroborates the -testimony about the scene of the accident being on a straight stretch of road and that it was raining that night. He also states that he was notified of the accident at 5:50 o’clock and traveled some 14 miles, arriving there at 6:11, so that apparently he is merely guessing about being at -the scene of the accident 25 minutes after its occurrence, unless the accident occurred at 5 :46. With reference 'to the damage to the automobiles involved in the collision, he states that the Chevrolet -automobile was damaged in front and that the Hartman truck was damaged on the right side, and the best he can -remember it was in three pieces, all demolished; that the Slaughter cattle truck was damaged at the left front fender, and left front bumper and the left front side of the radiator, an estimated damage of about $250.00; that the bumper on the Slaughter trade was made out of pipe like those on large oil trucks. Upon being questioned about 'the situs -of the accident, he states that the highway where it occurred has 18 feet of pavement, with shoulders on each side of approximately 6 feet.

Mr. Ted Loftess testified that he arrived at the scene after the accident had occurred,, along -with Mr. Henry Kinchen; that when he arrived there were a few cars there, and then a couple of minutes later there was a bunch of cars there; that -he assisted in removing Mr.- Hartman from his truck, and placing him in his car and took him to the Wigginton Infirmary at Hammond; that when Mr. Hartman was placed in his car he was groaning and apparently conscious and suffering great pain; that towards the last of the trip, he was semi-conscious. He states when he arrived at '-the scene the Chevrolet car was facing the Hartman truck and was entirely on the concrete on its right-hand side and that the Hartman -truck was ahead; facing north. He admits that he saw several people a't the scene of the accident, but does not recall who they were.

Mr. Henry Kinchen corroborates the testimony of Mr. Loftess.

Mr. A.' B. McMorris testified in effect that he saw Mr. Hartman shortly before the accident at his, McMorris’ home; that Mr. Hartman was driving a pick-up truck and that he saw Hartman driving away from his home in front of him, and thereafter saw a vehicle in front of him which definitely had a taillight. He refused to positively state that the vehicle ahead of him was the Hartman truck, but states that no other car passed him from the time Hartman left his place; in other words, his testimony is to the -effect that he did see a taillight on the Hartman truck. He further testifies that Hartman was engaged in hauling cattle and in small farm operations, and that the truck in question, as far as he knows, was always well taken care of.

'Buffington S. Mayer, Jr., testified that he is 28 years of age and has been engaged in the general insurance business -since March, 1946, and is the owner of the Fleet-line 1947 Chevrolet involved in this accident; that at the time of the accident it was raining, that the accident happened at about 5:30; that he left his office in Baton Rouge shortly before 5 P. M., to beat the 5 P. M. traffic and was going to Hammond, Louisiana, that he walked to his car which was parked approximately three -blocks from his office and then proceeded to his trip; that he travelled approximately twenty-six miles to the -scene of the accident, which he states occurred shortly after 5:30 P. M. Later he testified that by actual check on -his speedometer the distance from Wickwire’s Bar, near the scene of the accident, to the parking place of his car in Baton Rouge showed a mileage of twenty-five and one-half miles. He testified further that his speed was approximately forty-five miles per hour; that the road was wet and it. was then actually raining; that -he was travelling with -his lights burning and that he would alternate from bright to dim upon meeting traffic; that upon making the curve at the west end of the straight stretch of road he saw three lights approaching him. The lights referred to were apparently from the Hartman truck -and the Slaughter truck travel-ling in its rear. He testifies further that he did not see the crash -between the Slaughter truck and Hartman truck but merely saw a flash of light in 'his path and thereupon released his accelerator and immediately thereafter crashed into an object which he afterwards was informed was the Hartman truck.

In connection with his testimony, it was brought out that on Nov. 14, 1947, he signed a written statement taken from -him by Attorney Miller, in the presence of his, Mayer’s, mother (statement in record) and State Policeman Regusa, in which he stated that he -had seen the truck collision approximately one block away, or 300 feet, and that said statement, before being signed, was read to him by his own attorney. He does not deny making such a statement, but it is contended that the -statement was taken only 4 days after the accident, while he was still in the hospital and under the effect of drugs, and it is testified that at the- time he was very loquacious and was even advised by Lt. Regusa not to sign such statement; that as shown by the 'original statement he at first said “one block,” which was later scratched out and -changed to “300 feet”, and also some other remarks in the statement were scratched out. The trial court apparently was not very much impressed by the statement, and neither are we, because of the -circumstances under which it was taken. Moreover, -there is no showing whatsoever that Mr.. Mayer was under the influence of alcohol, or in any abnormal condition at the time of the accident, and the evidence is to the effect that the second collision occurred immediately after the first and too soon for him to ‘have travelled 300 feet.

Dr. Charles McVea testified with reference to the injuries of Mr. Mayer, whom he treated at The Lady of the Lake Sanitarium in Baton Rouge for some six days, and thereafter in his office. He states that Mayer had an extensive laceration of his head, approximately five inches long, and a complete fracture of the middle third of the radius of the forearm and bruises and lacerations about the head and area of both knees; that he applied a cast to his arm and gave him sedatives and medication to combat infection; that he was in considerable pain the night he came in, and required sedatives for several days; that the sedatives quieted him and dulled his sensory responses; that among the. sedatives given him was morphine, and that the effect of the drugs lasted about four hours. He also stated that Mayer suffered some degree of concussion and that the treatment therefor was merely rest in bed. He also states that he has remained with a “V”' shaped scar on his forehead, extending back under the hair line, and five inches in length, and that said scar will remain permanently, but will become less noticeable as time goes on. The Doctor, in effect, testified that in his opinion, the use of drugs in this case was not in ■ an amount sufficient to cause the patient to give any untrue statements, and that he did not see him at any time when he was under the effect of the drugs to the degree that he did not know him, and could not talk to him. Dr. McVea’s testimony is to the effect that the drugs caused the patient not to be “as alert as usual and more irritable than usual for a period of several days after the accident.”

Plaintiff, Mrs. Estelle D. Hartman, testified that her husband had 'been engaged in farming, the cattle business, ‘and some barber work, and that he earned approximately $2,000.00 to $2,500.00 per year. She testified further that as a result of his injuries he suffered great pain during the four days prior to his death. She was with him at the hospital during that time. She states further that at the time of his death he was 60 years of age. (The death certificate gives his age as 61.) If 60, his life expectancy was 14.10 years, and if 61, 13.47 years. She testified further that prior to her husband’s death she was postmistress at Corbin and has continued her position at a salary of $1,206.00 per year, plus fees for money orders. No corroborating testimony of her husband’s earnings was introduced. She states that he made an income tax return for the year before, but a copy of such return was not produced.

Lt. Regusa testified that he is employed by the State Police and that he went to the Lady of the Lake Hospital with Mr. Miller, Attorney for defendant Slaughter, to obtain a statement from Mr. Mayer with reference to the accident; that Mr. Mayer at the time was in bed, but was in good shape; that the statement was taken by Mr. Miller, before him, Lt. Regusa and Mayer’s mother, and that no threat or intimidation of any kind was made; that Mr. Mayer talked freely; that the statement was prepared by Mr. Miller, that some corrections were made at Mr. Mayer’s request and that he suggested to Mayer that he should not sign a -statement like that because in a statement before he said he was unconscious, but then he continued to state freely what happened at the accident. He says: “I told him I thought he should not say that, and we got Mr. Miller to scratch out what is scratched out.” This witness admitted to Mr. Miller that a conversation with reference to Mr. Mayer’s scar -and broken arm was- had prior to taking the statement; that Mr. Miller tried to encourage Mr. Mayer by stating to him that he too had sustained a bad scar and a broken arm, and had completely recovered therefrom. In other words, Regusa admits that the statement was taken only after casual conversation and not immediately upon entering the patient’s room. He also testifies that the statement was read by Mr. Mayer’s attorney and was signed by Mr. Mayer while his attorney was there. He also adds that no leading questions were asked .Mr. Mayer, and that Mr. Mayer dictated his statement from his sick bed; that Mr. Mayer was in a talkative mood and wanted to give a statement and seemed in very good spirits and, in fact, practically insisted that he give a statement.

The remainder of the evidence consists of photographs showing the damaged Hartman truck and Mayer Chevrolet, and from these it is very apparent that the Chevrolet crashed with great force into the right side of the Hartman truck. There is, of course, also contained in the record the statement of Mr. Mayer, which has been discussed in the testimony summarized above.

Documentary proof was introduced of the actual medical expenses of Mr. Hartman and of Mr. Mayer, and of the damage to Mayer’s car. These items are not in dispute.

As to the Hartman-Slaughter suit, as previously stated, the only issues involved are the questions of whether or not the driver of the Slaughter truck was negligent, and if so, whether the deceased, Hartman, was guilty of contributory negligence, and in the event of liability, the quantum of damages.

The negligence of the Slaughter truck driver is practically conceded. Due to the prevailing weather condition, he was driving too fast. It had been and was raining; the inside of his windshield would become foggy, yet he continued, so he says, to drive at about thirty-five miles per hour regardless of the fact that he says that he became blinded when the Mayer automobile came around at the western end of the two-mile straight stretch of road. He was not keeping a proper lookout and did not have his truck under proper control. We fail to find any negligence on the part of the deceased Hartman. He was admittedly travelling at a slow speed, which is in his favor considering the weather conditions and the on-coming Mayer car. The preponderance of the evidence is that his car was equipped with a taillight, which was burning.

As to the Mayer-Slaughter suit, the same questions are presented as in the Hartman-Slaughter suit.

Since we have found that the Slaughter truck driver was guilty of negligence, we see no reason to discuss the matter over again.

The most serious question in this case is the contributory negligence of Mayer.

Our' appreciation of the facts in this case leads us to the conclusion that the Hartman truck was not in the lane of travel of Mayer and within the range of Mayer’s lights a sufficient length of time for Mayer to observe Hartman’s truck and stop his automobile before striking the truck. It therefore cannot be said that Mayer did not keep a proper lookout and did not have his car under proper control. It may be conceded that Mayer was operating his car at an excessive rate of speed due to the weather condition then prevailing, yet the fact remains that his speed was not. a proximate cause of the accident, and we agree with the trial judge that the sole proximate cause of the accident was the negligence of McGinnis.

As to the quantum in the Hartman-Slaughter suit, we are of 'the opinion that the amount awarded to the widow by the District Court for the loss of her husband’s love and affection, and companionship, loss of her husband’s earnings and support and for the mental pains and suffering of her deceased husband is excessive and is not in line with our recent awards. We believe' that an award of $10,000.00 does substantial justice. We will therefore reduce the amount awarded to Mrs. Hartman by the sum of $4,500.00, and as thus reduced the judgment will be. affirmed.

As to the quantum in the Mayer-Slaughter suit, we are of the opinion that the award made by the District court is certainly not excessive and is in line with our jurisprudence and therefore the judgment will be affirmed.


text:
    SANCE et al. v. MONROE et al.
    No. 3089.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    C. Paul Phelps, of Ponchatoula, for appellants.
    Reid & Reid, of Hammond, for appellees.
   ELLIS, Judge.

In the year 1938, Governor Richard Leche donated to Springfield Baptist Church, an unincorporated religious association, the sum of $300 with which was purchased a plot of ground upon which the original church building was dedicated. This building later and at the present time became the parsonage, and the church acquired another location and old building, which is now used as the church. This church was established by the united efforts of its members and its pastor, Reverend Itriel T. Moore, and his wife, both of whom are defendants in this present suit. The record shows that the church affairs ran along smoothly for a number of years.

The Rev. Monroe joined the United States Army as a Chaplain on October 31, 1942 and was granted a leave of absence by the members of his church for the duration of the war and until six months after its termination. After the end of the war the Rev. Monroe remained in the army and is in the army at the present time. During this time his wife and family have occupied the parsonage. The members become dissatisfied and the relationship between most of the members and Mrs. Monroe reached such a point that Mrs. Monroe nailed up the church and refused to allow it to be used and also refused to vacate the parsonage. Hence, on May 21, 1947, the present suit was filed.

Defendants filed exceptions, among which was one of non-joinder which was sustained and, as a result, all parties who had ever been members of this church intervened and those who refused to intervene were made parties defendant.

Plaintiffs’ petition alleged the organization of the Springfield Baptist Church and the acquisition of the property upon which the church is located and also the acquisition of the property upon which the parsonage is located “for the use of the minister who may be called to preside over the said church and to conduct religious ceremonies therefor.”

It is further set forth in plaintiffs’ petition that Mrs. I. T. Monroe assumed possession of the church property and prevented the members of the congregation from using the same for worship or for religious services of any kind, and also the defendant, Mrs. Monroe, had, for “several” years illegally and without any right continued to live in the parsonage which was erected for the use of regular minister. Wherefore, the plaintiffs prayed for. the issuance of a rule directed to the defendants, ordering them to show cause why an injunction should not issue enjoining, prohibiting and restraining them from taking possession of the church property and from interfering in any manner with the free use thereof, and why Mrs. Monroe should not deliver possession of the residence belonging to this church to the governing authorities of the church and ordering Rev. I. T. Monroe and Mrs. Monroe and family to vacate the parsonage.

The defendants, Itriel T. Monroe and Mrs. Itriel T. Monroe, filed separate answers which were, in effect, general denials except that they admitted that demand had been made upon them to vacate the parsonage; that on or about October, 1938 the defendants, Rev. I. T. Monroe and his wife, Mrs. Monroe, “pursuant to a regular ■call of the Springfield Baptist Church and as pastor thereof, moved into and occupied the parsonage together with their family.” The defendant, Itriel T. Monroe, alleges that he “occupies lifetime tenancy as pastor of the Springfield Baptist Church.”

The record reveals that on the 2nd day of June, 1947, an agreement was entered into by counsel for plaintiffs and counsel for defendants by which it was agreed that a conference of all the members of the church would be called and held “after due notice signed by the attorneys for both plaintiffs and defendants within thirty days from date thereof and this conference shall take action on all the matters in dispute; conference to be held and action taken under proper rules and regulations generally governing such conferences.”

It was further agreed at this time that the congregation should have the free and undisturbed possession and use of the church building pending the conference hearing, and that Mrs. Monroe should not be disturbed in her occupancy of the parsonage building pending the holding of this conference or within thirty days thereafter, and the rule for injunction was continued without prejudice to the rights of either party.

Counsel for the defendants has set forth in his brief in detail the minutes of the meeting held as a result of the agreement on June 2nd. The record shows that forty-one persons were notified as members of the congregation and, as counsel states in his brief, “ * * * it being a complete list so far as counsel for both sides could ascertain and lists all persons who had ever been a member of the congregation.”

The minutes of the meeting on July 13, 1947 are very clear and' were well taken and reported. Rev. Sam\ Gordon, a very prominent and distinguished minister of the Amite Baptist Church was elected Chairman, and Rev. E. H. Dearman, also a prominent and distinguished minister of the Kentwood Baptist Church was elected clerk. The business taken up was in order and to the point, and upon a motion duly made and seconded, the pulpit and parsonage of the Springfield Baptist Church were declared vacant by a vote of seventeen to five. At the termination of this meeting, counsel for defendants stated that none of the records would be turned over to the church and that the entire matter would be referred back to the Court.

After the matter was referred back to the Court, the case was duly tried and there was judgment in favor of the plaintiffs “decreeing that the property occupied by the church building and ■ parsonage at Springfield, Louisiana is the property of the Springfield Baptist Church and that the said church and congregation thereof are entitled to the full and free possession of the said property and ordering said defendants, Itriel T. Monroe and Mrs. Itriel T. Monroe to vacate said property and to deliver possession thereof to the Springfield Baptist Church forthwith. * * * ” The Court further rejected the reconven-tional demand of the defendants and ordered them to pay all costs.

The defendant Mrs. I. T. Monroe has appealed from this judgment of the lower court. No appeal was perfected for any of the other defendants.

There is no testimony except the testimony of the defendant Monroe and his wife that he was to enjoy a life time tenancy and to have complete control of this church property. The preponderance of the testimony proves that this unincorporated church was to be governed by a majority of its members and that Rev. Itriel T. Monroe was employed as pastor of this church, which included the right to occupy the parsonage. When he entered the service, the congregation gave him a leave of absence for the duration of the war and for a period of six months thereafter. The Rev. Monroe did not return but reenlisted in the army. During the time that he was in the army the church was used and a temporary pastor occupied the pulpit. However, Mrs. Monroe nailed up the church and even went so far as to make criminal charges against members of the congregation who broke into the church for the purpose of using it for religious services.

There is evidence in the record of a previous meeting of the congregation, referred to by counsel for defendants as a “rump” meeting, which occurred in 1945 and notice of which was given to Mrs. Monroe as well as the result of the meeting. At this meeting, the congregation dismissed Rev. Itriel T. Monroe and served notice on Mrs. Monroe to vacate the property, which were disregarded by the defendants. Regardless of this meeting, the preponderance of the testimony shows that this church was to be governed by a majority, and there was a meeting held on July 12, 1947, regular in every detail, in which the majority voted that the pulpit and the parsonage of the church be declared vacant. It may be argued that this meeting was held after the filing of the suit, but it was done by consent of counsel for both plaintiffs and defendants.

Counsel for defendants filed an exception of no cause or right of action in this Court, based upon the proposition that if the present suit was a petitory action, it did not state a cause of action, and if it was a possessory action, it did not state a cause of action. In our opinion, it is neither, and it is not necessary in this suit to pass on who is the owner of the property, as the suit involved a question of the rights of a majority of the members of the congregation of the Springfield Baptist Church to discharge a pastor and evict his family from the parsonage. The right of the pastor in this case to occupy the parsonage is incidental to his contract of employment and, as that could be terminated at will by a majority of the congregation, so could his right of occupancy of the parsonage.

This suit is in the nature of an eviction of one who is no longer entitled to the possession and occupancy of property. It is governed by Act No. 298 of 1938, Dart’s §§ 6606.1-6606.3, which deals with ejectment of others who are not tenants.

All in all, Rev. Monroe and his family have been treated very fairly by the congregation of this church and he cannot expect to remain in the army, nail the church up and use the parsonage, when all he ever had was a simple contract of employment as pastor with the right to occupy the parsonage as a part of his remuneration and which position was terminable at will by a majority vote of the members of the congregation, which we believe the record shows was done not once but twice.

It is therefore ordered that the j'udgment of the District Court be affirmed, the defendant to pay all costs.