author: PER CURIAM.

text:
    ALGERE v. GODCHAUX & MAYER, Ltd. et al.
    No. 17702.
    Court of Appeal of Louisiana. Orleans.
    Oct. 6, 1941.
    Adelaide Baudier, of New Orleans, for plaintiff and appellant.
    Dufour, St. Paul & Levy, of New Orleans, for defendant appellee.
   PER CURIAM.

This matter comes before us on motion to dismiss the appeal on the ground that it is taken from an interlocutory order which has caused no irreparable injury and that there has been rendered no final judgment from which an appeal might be taken.

The suit is one for damages resulting from an automobile accident. The injured plaintiff, Mabel Algere, in this proceeding did not sue the alleged tort-feasor, C. L. Tillman, Jr., but sought judgment under Act No. 55 of 1930 against General Accident Insurance Company, alleging it to be the liability insurance carrier of the said tort-feasor, Tillman.

Plaintiff also prayed for judgment against Godchaux & Mayer, Ltd., a corporation, which corporation she alleged to be the agents and brokers of the said General Accident Insurance Company.

Plaintiff prayed for a reservation of her rights to file an independent suit against Tillman, the alleged tort-feasor and it appears from briefs which we find in the record that this other suit has been filed against the said Tillman.

In the suit which is before us against the insurance carrier and the alleged agents and brokers of the said insurance carrier, plaintiff filed interrogatories to be propounded to the said defendants, these interrogatories dealing with the occurrence of the accident.

To these interrogatories the defendants filed answer, stating, in each case, “that they do not know”. Upon the filing of these answers, plaintiff, by rule nisi, called upon the said defendants to show cause why their failure to answer categorically each of the propounded interrogatories should not authorize the rendering against them of judgment “pro confesso”. This rule was dismissed. The district judge wrote upon the face of the rule itself, “Rule dismissed”, and from that order dismissing the rule plaintiff has obtained an order granting a devolutive appeal and has lodged the transcript, or record of appeal, in this court. It is this appeal which we are asked to dismiss.

We think it evident that the order dismissing plaintiff’s rule for a judgment “pro confesso” is merely an interlocutory order as defined in Article 538, C. P. and that it worked no irreparable injury to plaintiff. It is well settled that an appeal from an interlocutory judgment will lie only in cases where the injury is irreparable. Article 566, C.P.; Board of Liquidating Bank Commissioners v. Dodson, 131 La. 44, 58 So. 1027; Succession of Pons, 141 La. 331, 75 So. 70; Barkley & Co. v. Ham & Seymour, 157 La. 872, 103 So. 245.

Plaintiff sought to prove her case by the aforementioned interrogatories and she propounded them to both defendants, neither of which could possibly have had any information concerning the actual occurrence of the accident, except by hearsay. The dismissal of the rule did not terminate plaintiff’s suit, but simply made it necessary that she find some other means of proving the facts upon which she is seeking to rely.

In Kraeutler et al. v. President, Directors & Co. of the Bank of the United States, 11 Rob. 160, the Supreme Court of Louisiana was presented with a situation which we consider identical with that which we find here. There judgment “pro confesso” was sought against a garnishee on the ground that the garnishe'e had not categorically answered the propounded interrogatories. From an order dismissing the rule for judgment “pro confesso”, plaintiff appealed, and on motion to dismiss the appeal the Supreme Court said that the order dismissing the rule was a mere interlocutory order and did not work irreparable injury.

No distinction can be found in the fact that in that case defendant in rule for judgment “pro confesso” was a garnishee, whereas here the defendants in rule for judgment “pro confesso” are the defendants in the principal controversy.

See, also, Carroll v. Wallace, McGloin 9.

The appeal is dismissed at the cost of appellant.

Appeal dismissed.


source: Caselaw Access Project

author: LEBLANC, Judge.

license: Public Domain

text:
    BURNS v. NATALBANY LUMBER CO.
    No. 2281.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    C. Paul Phelps, of Ponchatoula, and Morrison & Sims, of Hammond, for appellant.
    Carroll Buck, of Amite, for appellee.
   LEBLANC, Judge.

Plaintiff herein has appealed from a judgment in the district court which rejected his demand for compensation against the defendant and dismissed his suit. He had been granted an order by the court to prosecute his demand under the benefit of Act 156 of 1912, as amended by Act No. 260 of 1918, § 1, and known as the Pauper Act, under the provisions of which he was relieved from the payment of costs and furnishing an appeal bond.

He was formerly employed by the defendant lumber company in various capacities and on or about January 18, 1939, when he claims to have suffered an accident which gave rise to his demand for compensation, was engaged in the duties of night watchman. On that night, he alleges, that while making his rounds, he walked over a raised platform or runway and the planks gave away under his weight as a result of being decayed and he fell through the opening thus made to the ground, a distance of about five feet. He avers that he landed in a cramped and strained position and the fall caused a hernia to develop in his left groin. He then sets out that within less than six months he reported his injury to his foreman but the latter accused him of trying to perpetrate a fraud upon his employer so he continued to work until July 6, 1939. He alleges that all the while he worked after his injury he suffered continuously and that he still suffers and has become permanently and totally disabled to do work of a reasonable character. He does not allege specifically what his average weekly wage was while he worked but claims to be entitled to compensation at the rate of $15.47 per week and in addition, prays for $250 for medical fees.

The defendant, for answer, admits plaintiff’s employment but denies all the allegations of his petition relating to the accident and injury he claims to have suffered and that he ever complained of a hernia or of any injury causing him incapacity to work. Further answering defendant sets out that during the night beginning July 5, 1939, and ending with the morning of July 6, 1939, plaintiff, whose duties required him to make regular rounds at intervals of one hour each over the territory he guarded and punch the time clock which he carried with him with keys permanently attached to different posts and parts of the buildings, removed at least one of the said posts with the key attached to it from the ground and replaced it about a quarter of a mile away so that he could punch his time clock without having to make his rounds in the designated manner. This, it is averred, was in violation of the rules and regulations of his employment, as he well knew, and that upon discovery of his action he was promptly notified that his services would be no longer required upon completion of his rounds on the morning of July 6, 1939. As a further defense, in the alternative, defendant avers that if plaintiff is suffering with a hernia, as long ago as in the year 1937 he claimed to have had one and that if it existed at that time it has in no way been aggravated while he was in its employ.

The trial judge filed no written opinion in the record but regardless of the reasons on which he based his judgment, we think that he correctly rejected the plaintiff’s demand.

Plaintiff testifies in substance that during the early part of the morning of January 19, 1939, while engaged in his duties as night watchman, he was walking on a runway or platform adjoining a drying kiln and that a plank gave away under his weight and he fell into the hole against one of the rotten sills in front of him. He experienced a little pain and a stinging sensation immediately in his groin and noticed also that he had a cut on his left leg. He went to the boiler room where a small first aid kit was kept and painted the cut with iodine. He then resumed his work and did not report his accident until the night of January 29, 1939, when he told Mr. Charles Hare, the defendant’s superintendent, about it. Apparently nothing was done about the matter as he continued to work until July 6, 1939, when he was discharged. It was only after that that he consulted a doctor.

To corroborate his testimony regarding the time of the accident plaintiff called a witness by the name of Valentine Reeves who was also employed as night watchman by the defendant company. He recalls s conversation between them during the month of January, 1939, during which plaintiff told him about a fall he had had and having sustained an injury. Plaintiff told him that he had hurt his leg and also felt that he had a rupture. When asked if he could recall during that conversation the time at which plaintiff told him he had sustained the hernia, he says : “I understood him to say back before Christmas or somewhere around there.” He says that plaintiff continued to perform his duties after they had had that conversation and that he observed no difference in the manner he did his work.

J. W. Cabler, another witness, called by plaintiff and who was also employed by the defendant, as an engineer, stated that two months before his discharge plaintiff told him that he had skinned his shin when he stepped in a hole and showed him the skin abrasions on his leg.

Charles Hare, called as a hostile witness under the cross-examination statute, testifies that plaintiff never complained to him about having a hernia until some two or three days after his discharge on July 6, 1939.

The foregoing comprises practically all the proof offered and submitted by the plaintiff to show that during the night beginning January 18, 1939, as he contends, he had an accident which caused him to have a hernia develop on his left side. It is unconvincing, in the first place, of his having sustained any accident at all at that time and secondly, conceding that he is at present suffering with a hernia, that it was caused by an injury sustained by him at any time while he was in the employ of the defendant. Dr. DeLoach Thomas, the physician he consulted after his discharge in July, 1939, stated that his examination of the plaintiff lasted about ten minutes, that he found him suffering with a small hernia but was unable to tell whether it was of traumatic or congenital origin. He is of the opinion that had it been sustained from trauma as plaintiff claims, at the time of his fall, the pain would have been far more severe than what he felt and more likely than not, he could not have continued to work as he did.

Plaintiff’s counsel complain of the ruling of the district judge in refusing to let his client exhibit his person to the court to show that he had injured his leg in the fall and that he had a hernia. That however was a. matter which was within the discretion of the trial judge who may have thought that such a procedure would neither add to nor detract from the proof. The only purpose could have been to show the scars, if any, from the wound on the leg and the location of the hernia. Exhib-' iting these could have in no manner, as we can see, assisted the court in determining the time of the occurrence which caused them and under the facts and circumstances otherwise appearing we do not know what useful purpose could have been served. We do not think therefore that there was a misuse of his discretion by the district judge in this respect.

We find it unnecessary to discuss in this opinion the reasons for plaintiff’s discharge on July 6, 1939. He admits that it was for a serious infraction of-the rules and regulations under which he had to perform his duties. Regardless whether that was a motive which prompted his demand for compensation or not we are convinced that he has failed to support his claim by competent proof and the judgment of the lower court which rejected his demand and dismissed his suit is correct.

Judgment affirmed.


author: LeBLANC, Judge.

text:
    BURDEN v. CAPITOL STORES, Inc., et al.
    No. 2263.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Granted Jan. 5, 1942.
    G. Caldwell Herget and C. C. Bird, Jr., both of Baton Rouge, for appellant.
    St. Clair Adams & Son, of New Orleans, and Durrett & Hardin and Sanders & Miller, all of Baton Rouge, for appellees.
   LeBLANC, Judge.

This is the suit of William Pike Burden, Jr., against Capitol Stores Inc., Willie Fritz, one of its employees and Massachusetts Bonding and Insurance Company, insurance carrier on its truck, for damages for personal injuries. Originally the demand was for the sum of $42,987.79 but several items were subsequently eliminated and in a supplemental petition the total amount of the demand was reduced to the sum of $33,099.79.

We find the case correctly stated in the written opinion filed by the district judge from which we take the liberty to quote as follows:

“The plaintiff, William Pike Burden, Jr., alleges that on or about the 30th day of July, 1938, he was driving a Pontiac Coach in an easterly direction on Julia Street in the City of Baton Rouge, Louisiana, at a lawful rate of speed, and on the right hand side of the street. He further alleges that when he was some distance from the intersection of St. Napoleon and Julia Streets, he saw the truck belonging to the Capitol Stores, Inc., driven by Willie Fritz, travelling north on St. Napoleon Street at a speed which he estimated to be twenty-five miles per hour.

He further represents that he saw the said Willie Fritz reduce the speed of the truck to about twenty miles per hour, and, as there was nothing to obstruct the view of a driver on St. Napoleon Street, he concluded that Fritz had seen him and was slowing down in order to permit him to cross the intersection on Julia Street, which street, he alleges had the right of way over St. Napoleon Street under an Ordinance of the City of Baton Rouge.

The plaintiff claims that he took his eyes off of the truck and looked to the north which was his left, to' ascertain whether any cars were approaching the intersection travelling south on St. Napoleon Street, and seeing none continued his progress east on Julia Street, but that when he entered the intersection of Julia and St. Napoleon Streets, although the driver of the truck had reduced the speed thereof, he did not stop, but on the contrary in spite of the fact that the plaintiff was on Julia Street, which was as stated, a right of way street, and in spite of the fact that he entered the intersection first, Fritz continued his progress north on St. Napoleon Street and collided with the automobile driven by the plaintiff.

He further represents that after he entered the intersection and saw that Willie Fritz was not going to stop his truck, and just a moment before the truck driven by Fritz struck him, he pressed down on the accelerator of his car in an effort to get out of the path of the truck, but that the car which he was driving did not have a fast pick-up and therefore it was impossible for him to get out of the path of the oncoming truck.

The plaintiff claims that Willie Fritz could easily have avoided the accident by stopping the truck or by veering the same to the left and around the back of the plaintiff’s car, but that the said Fritz deliberately and recklessly continued his progress, striking plaintiff’s car on the rear right fender and rear right bumper; that when his automobile was struck in the rear his car veered, and in an effort to hold it in the road he continued to keep his foot on the accelerator, but that on account of the severe impact between the two vehicles, his car was skidded against the left curbing of Julia Street looking east and turned over causing him to lose control of his automobile.

Plaintiff prays for judgment against Willie Fritz, the Capitol Stores, Inc., the owner of the truck driven by Fritz and the Massachusetts Bonding and Insurance Company.

In an amended and supplemental petition he eliminated certain items of damages which he had claimed in the original petition, but further than this made no amendment thereto.

The defendants in their answer to plaintiff’s petition, admit the fact of the collision on the date set out in the petition. They further admit that Willie Fritz was driving a truck belonging to the Capitol Stores, Inc., but deny that at the time of collision Willie Fritz was engaged within the scope of his employment by the Capitol Stores, Inc., and particularly that he was delivering merchandise for said corporation.

Defendants especially deny that the accident occurred in the manner set forth in the plaintiff’s petition.

In the alternative, they allege that in the event it should be held that Willie Fritz, the driver of the truck was negligent and was acting within the scope of his employment, the plaintiff was guilty of negligence proximately contributing to the accident, barring his recovery for the following reasons :

(1) In operating his automobile at an approximate speed of 30 to 35 miles per hour while entering and crossing the intersection ;

(2) In failing to keep his car under proper control;

(3) In not maintaining a proper lookout for automobiles or other vehicular traffic approaching the intersection of St. Napoleon Street in a northerly direction;

(4) In attempting to enter the intersection after the truck had already entered the same, and at a time when it was impossible for the driver of the truck to avoid a collision;

(5) In failing to see the approaching truck, or, if he did see the same as he should have, in failing to take proper precautions to avoid the collision;

(6) In failing to see the approaching truck, or, if he did see the same as he should have, in leaving a place of safety to attempt crossing the intersection in the face of a situation fraught with grave and imminent danger.”

On the issues as presented to him, the district judge, for the reasons assigned in his written opinion, reached the conclusion that the drivers of both vehicles were guilty of negligence and judgment was accordingly rendered dismissing the plaintiffs suit. From that judgment, plaintiff has perfected and is prosecuting the present appeal.

At the outset it might be well to mention that there is no longer any dispute on the question of the purpose of the truck driver’s employment on the trip he was on at the time of the accident and the liability of his employer and its insurance carrier, in case of his negligence, is no longer an issue in the case.

The only persons who claimed to have seen the accident when it happened are Mr. Burden himself, Willie Fritz, the truck driver and a negro named Jesse Tilley who was in the truck with him, a white man named Nolan Sicard and a negro woman named Mary Williams.

St. Napoleon Street runs due north and south and where it intersects Julia Street, which runs east and west, is 24 ft. 3 in. wide. Julia Street, at that point, is 23 feet wide.

Plaintiff’s place of business is located at the corner of Julia Street and Highland Road, two blocks west from the corner at which the accident took place. He testified that on the morning of the accident he left his office in an automobile which, it developed during the trial, was that of his wife, and was proceeding east on Julia Street as he had some business which took him in that direction. That when he reached the first corner which evidently is the one at which the first street west of St. Napoleon intersects Julia Street, a car was crossing that intersection and he had to slow down practically to a stop and shift the gears of his car. He then proceeded on into the next block at a rate of speed of from 20 to 25 miles an hour. When he was “a little ways” in that block he looked to the south and saw the blue truck of the Capitol Stores coming north on St. Napoleon Street. At that moment the truck and his car were about the same distance from the intersection, both going at about the same speed. He continued on at the same speed and when about 40 feet from St. Napoleon Street he looked south again and saw the truck which he says was again abora. the same distance as he was fi-om the intersection. To use his own expression, “the truck hesitated,” that is, it did not stop but its speed was reduced in such manner that the driver “gave every indication he was going to drive up and stop.” Acting on this assumption, he continued on, looked ninth to his left for traffic coming from that direction and when he had already entered the intersection observed that the truck had not stopped and was going to strike his car. He then pressed the accelerator on his car to the floor in an effort to speed on ahead of the truck but did not get by in time and his car was struck a blow which completely lifted it up. He states that the car he was driving did not have the same “pick-up” as his own car and did not answer as fast as his when he tried to speed ahead of the truck.

The witness Sicard testified that on that morning he was also travelling east in an automobile on Julia Street and was about a block and a half behind plaintiff’s car when the collision occurred. He states that from that distance and his position, he was able to see that the Burden car entered the intersection first and that the front end of the car had already passed the front end of the truck when it was struck on its back end. He would not venture to say how far away the truck was from the intersection when he first saw it, neither would he estimate its speed although he didn’t believe it was going very fast.

Willie Fritz, driver of the truck, states that he was going north on St. Napoleon Street at about IS or 20 miles per hour and when he got near the Julia Street corner he blew the horn of his truck. He then saw the Burden car coming down “a piece” and Jesse Tilley who was in the truck with him called out, “There comes a car!” He told him he had seen it and just before it got near he had driven 4 feet into the intersection. However the car did not stop so he applied the brakes on his truck and brought it to a stop. Mr. Burden then tried to pull away from him to avoid striking the truck but the back end of his car caught the grill on the front end of the truck and pulled it loose. He further stated that he went on into the intersection because he did not think the Burden car was going to “come across” like it did.

Jesse Tilley testified that as they were about in the middle of the block before Julia Street he saw the Burden car coming and warned Fritz of its approach. This witness is the only one who estimated the speed of the Burden car as high as 45 miles per hour. Fritz blew the horn of his truck and reduced its speed to 10 or 15 miles per hour. Upon reaching the intersection he applied the brakes and the truck came to a stop 3 or 4 feet within the intersection. The car then passed ahead of it and hit the front part of the truck.

Mary Williams stated as a witness that she was walking on Julia Street and that she was about a block and a half from the corner where it happened. She heard the horn of the truck twice and on hearing it the second time she looked up and saw the truck approaching the corner. It was sounded once more as the truck entered the intersection and as it did so, “out came this automobile (the Burden car) running fast.” The truck stopped and the driver of the car made an effort to get by in front of it but could not and it struck the truck.

This witness had given statements to representatives of both sides when the accident was being investigated. They were reduced to writing and signed by her. In the one she is reported to have made to plaintiff’s representative she says that the truck horn sounded twice; that the truck ran into the back end of the-car; that the truck could have stopped but the car could not stop at the time the truck horn was blown. In that given to the defendants’ investigators she is said to have stated that the car was approaching fast and the truck was going slow; that just before the truck reached the intersection the driver blew the horn and that when he about reached the center, that the Burden car reached that point also and the collision took place. In that statement she says again that the truck struck the back end of the car. There is an apparent conflict between parts of both statements signed by her and her testimony on the witness stand and the district judge gave her testimony no consideration. We believe that this witness saw the accident from some distance east on Julia Street but no doubt she became confused regarding the details in speaking to the representatives of the respective sides and taking those parts of the statement which coincide with her testimony, the facts elicited would indicate that both vehicles reached the intersection at about the same time and that the truck driver had sounded his horn, and that the car was going faster than the truck.

All told therefore there is a sharp conflict in the testimony of the eye witnesses on the vital point in the case which is the one regarding pre-emption of the intersection by either of the two vehicles, and with that conflict in mind we come now to consider the physical facts found in the record. These may be said to appear entirely from the testimony of Anthony S. Longo of the Baton Rouge Traffic Police Force who investigated the accident and arrived at the scene very shortly after it happened.

His report shows that the collision took place 3 feet southeast of the manhole which is right in the center of the intersection and about 10 to 12 feet north of a line between the two corners on the south end of the intersection. The distance from a line between the west corners of the intersection is not given but as St. Napoleon Street is shown to be 24 ft. 3 in. wide, it follows that it must have been between 12 and 13 feet. After the impact, as shown by the officer’s report, the Burden car went 46 ft. 6 in. in a northeasterly direction, struck the curve on the north side of Julia Street, continued on 24 ft. more after which it upset and travelled 14 ft. on its top. The truck continued on St. Napoleon Street and stopped about 30 feet from the point of the collision.

Photographs offered in evidence show the damage to the truck to have been to the grill and front of the radiator, the front bumper and the right front fender. The car was damaged on the right rear fender and the rear bumper to the right. The windshield and window glasses were broken and the top was also damaged but all of this, no doubt, from the rolling over of the car after the accident.

We are of the opinion that the physical facts tend to support the contention of the defendants that both vehicles reached the intersection at almost the same moment and from the testimony of the respective drivers it seems as though each expected the other to stop or retard his speed to let the other proceed across. It is true that Mr. Sicard’s testimony corroborates that of Mr. Burden to the effect that his car entered the intersection first, but in view of this witness’s position, he being in his car a block and a half distant and especially as he was following the Burden car, it is highly improbable that he saw exactly what he says he did. He could well have seen the front end of the track cross the line between the south corners but we doubt very much that he could have seen the front end of the Burden car cross the line between the west corners of the intersecting streets. In an unguarded moment Mr. Sicard said that the reason he knew the Burden car had entered first was because its back end was torn up. .He later changed his testimony in this respect but most probably that was the basis on which he had drawn his conclusion.

We believe that the testimony as a whole shows that the car was moving faster than the truck as they both approached the intersection. Mr. Burden says that they, were going at about the same speed when they .were both 40 feet away. He then states however .that the truck slowed down and evidently that is what gave him such strong “indication” as he expressed it, that the driver would stop and let him go on. Assuming that to be the fact we have the truck going at a slower rate of speed at least when 40 feet from the intersection than was the car when it was that same distance away and it would then seem physically impossible for the collision to have occurred as the car would necessarily have travelled more than 2 or 3 feet in the intersection than did the truck. Moreover, Mr. Burden states that when he was in the intersection he observed that the truck would not stop so he accelerated his speed. That being so he should then have cleared the intersection ahead of the truck unless he misjudged the distance it was from him at the moment.

Mr. Burden no doubt relied to a great extent on the right of way he considered he had under the City Ordinance of the City of Baton Rouge which gives the streets running east and west a superior right over those running north and south. In view of Rule 20, section 3 Title 2 of Act 286 of 1938, the State Highway Regulatory Act, which limits the power of local authorities to, enact or enforce any rule or regulation contrary to its provisions, one of which gives the right of way at intersections to the driver of the vehicle approaching from the right, we are favored with an interesting discussion in briefs of counsel and in the written opinion of the district judge concerning the effect of that rule on the Ordinance of the City of Baton Rouge invoked by the plaintiff. We do not find it necessary however to decide in this case if the rule supersedes the Ordi-na'hce as granting Mr. Burden’s right of way under the Ordinance he was still not relieved of the duty and necessity of exercising care and caution. He had seen the truck from the moment he was in the middle of the block and could easily have kept his car under control. He observed later what he says himself was merely an “indication” from its movements that he could go on in safety. That, in our opinion, was not enough; he should have made. himself surer by either slowing down and not waiting again until he was within the intersection to learn that it was still coming on him and then stepping on his accelerator to try to pass ahead of it. “One. is not justified in forcing his position on the right of way street, and, when he tries-to beat the car on the less favored street across the intersection and fails, it can-not be said that he is not negligent.” General Exchange Insurance Corp. v. Corp. et al., La.App., 176 So. 145, 147.

After a careful consideration of the case we reach the same conclusion as did the' district judge, that regardless of which of’ the two drivers had the right of way, they both were negligent and therefore the plaintiff is barred from recovery.

Judgment affirmed.


author: Le BLANC, Judge. OTT, Judge

text:
    DE LA VERGNE v. EMPLOYERS LIABILITY ASSUR. CORPORATION, Limited.
    No. 2289.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.

      Deynoodt & De La Vergne and Porteous, Johnson & Humphrey, all of New Orleans, for appellant.
    Lindsay McDougall, of Covington, for appellee.
   Le BLANC, Judge.

This is a suit brought to recover the sum of $167.79 for damages to plaintiff’s automobile. It is shown by the testimony that the automobile was covered by insurance and that plaintiff was paid the amount of his damages less the sum of $50 under the deductible clause of the policy. The suit in effect therefore is one brought on behalf of his insurer under a subrogation clause of the policy for the amount which it had to pay him for-his damages and of course if he should ultimately recover judgment he would recover $50 in his own behalf. He is suing the Employers Liability Assurance Corporation, Ltd., as the public liability insurer of the other automobile involved in the accident. That automobile belonged to one Peter Thompson and was being driven at the time of the accident by Mrs. Thompson.

Both cars were proceeding in a northerly direction on the highway leading from New Orleans through Slidell on to Cov-ington. Mrs. Thompson was driving the forward car and travelling at a rate of speed which is pretty well fixed at 18 to 20 miles per hour. In her car with her at the time was her mother, Mrs. Allie Mae Drake, and an infant child. Mrs. Drake and the baby were seated on the rear seat of the automobile. Plaintiff was driving his car at a rate of speed which the testimony discloses to have been about 40 miles per hour. The accident took place at about 11:30 in the morning of April, 1940. Neither car therefore can be said to have been going at a fast or excessive rate of speed.

After reaching the “Y”- that is formed at the intersection of the highway between Slidell and Covington known as Highway 190 with the highway leading from that point to Madisonville and known as Highway No. 122, plaintiff started to pass ahead of the other car and just as he attempted to do so Mrs. Thompson turned her car slightly to her left as she intended to make a complete turn in the highway at that point and retrace her course back south on Highway No. 190. Plaintiff was unable to pass ahead of her and she also attempted to pull back to her right in order to avoid being struck, all of which was unavailable, and the result was that the plaintiff’s car struck her car a glancing blow on the left front end and his car was damaged to the extent and for the amount claimed by him and which incidentally is not disputed.

Plaintiff charges Mrs. Thompson with negligence in turning her automobile to the left without first looking to see if the roadway behind her was free of traffic; in doing so at a time when it was not safe for her to attempt a left-hand turn as his automobile was so close to her that a collision was inevitable; in failing to give the proper signal or warning of her intention to make a left-hand turn and in attempting to turn into the intersecting road at the wrong end of the fork of that road.

For answer to the petition of the plaintiff, the insurer of the Thompson car and the sole defendant, denies all of the charges of negligence made against Mrs. Thompson and places the blame on plaintiff himself because of his careless driving at an excessive rate of speed and in attempting to pass the Thompson car without first ascertaining whether or not the driver was aware of his intention to pass. Defendant alleges that such negligence on the part of the plaintiff was the sole and proximate cause of the accident. In the alternative the defendant pleads that even though Mrs. Thompson was negligent in any manner that plaintiff was guilty of contributory negligence for the reasons just set out.

In the lower court there was judgment in favor of the defendant dismissing the plaintiff's suit. The trial court in its reasons for judgment held that Mrs. Thompson was guilty of negligence in two respects:' (1) That she failed to give the proper signal prescribed by the State Regulatory Highway Act of her intention to make a left-hand turn and (2) in failing under a further provision of that Statute to have ascertained that there was no vehicle or traffic approaching from either direction before she attempted to make the turn. He held however that plaintiff was guilty of contributory negligence in failing to have given a proper signal or warning, by sounding the horn of his car, of his intention to pass the Thompson car, and that negligence of course stood as a bar to his recovery of any damages whatsoever.

The facts in the case are not very much disputed and we have no difficulty whatever in agreeing with the trial judge that Mrs. Thompson was guilty of negligence in the two respects pointed out by him. We however find reason to disagree with him on the question of the contributory negligence of the plaintiff.

At the formation of the “Y” where the accident occurred it seems but natural that all traffic coming from Mandeville and travelling north, and intending to turn into the Madisonville Highway, would turn into the “Y” at the south end of the fork and traffic headed in the other direction, or going south intending to turn into that highway, would enter at the north end of the fork. That being the natural procedure, as it would seem, drivers of automobiles following such traffic going in either of these directions would have a right to expect and assume that that is what the car intending to turn into the highway would do. It is not disputed that Mrs. Thompson had already passed the south end of the fork connecting the two highways and started to make her left-hand turn when she had reached the north end and that is where she intended to turn right around in the highway and go back south to a point well beyond the south fork. There is some testimony, not contradicted, that she either met or saw some people in another car and there seems to have been some exchange of signal between them which was what made her decide to turn around in the highway.

The plea of contributory negligence is based on plaintiff’s alleged violation of two provisions of the State Highway Regulatory Law, Act 286 of 1938. Those are the provisions relating to the passing of a vehicle by another at a highway intersection, Section 3, subsection e of rule 7 under title 2 of the act, and to the overtaking of a vehicle by another without the overtaking car giving sufficient signal or warning of its intention to do so. Subsection b of the same rule.

Under the view we take of the formation of the highway at a point where this accident occurred, the intersection of the highway on which 'the cars were travel-ling with-the highway leading to Madison-ville, considering that both cars were going north, was at the south end of the fork. The normal thing, as we have pointed out before, for the driver of a car going north on Highway No. 190 and intending to go to Madisonville would be to turn left at that end of the. fork and proceed on Highway No. 122. To all intents and purposes so far as these two cars were concerned, after they had gone beyond the south end of the fork, they had passed the intersection and plaintiff had the right to assume that Mrs. Thompson was not going to make a left-hand turn and he was then at liberty to pass ahead of her. There was therefore no violation of the provision of the Statute in that respect.

With regard to his failure to blow the horn of his car, in view of the situation which presented itself, the question that is suggested is whether the sounding of the horn was necessary and also whether it would have served to avoid the accident. Mrs. Thompson’s car was, up to the moment of her sudden attempted turn, on its right-hand side of the road, leaving plaintiff the usual necessary space on her left to pass ahead of her. Had she given him the least idea of her intention to make the turn, or had her car obstructed the clearance of his lane of travel on the left in the least, it would then have been imperative for him to sound the horn of his car and indicate to her that he intended to overtake her. The purpose of the law in requiring the giving of an audible warning by the overtaking vehicle, as we view it, is to favor its driver to the extent that his normal progress on the highway will not.be unnecessarily impeded by the driver of the car preceding him in not leaving or giving him sufficient clearance in which to pass ahead. There was nothing in the manner of Mrs. Thompson’s driving up to the very moment plaintiff’s car was almost on her left which indicated to him that his lane of travel would not remain open on that side for him to pass ahead. The only change she made was to slow down the speed of her car which plaintiff might well have construed as an invitation for him to pass ahead of her. By her own testimony she only turned her car a foot over the center stripe in the paved portion of the highway when plaintiff’s car was about 3 feet from her front fender with which his car collided when she attempted to pull back to her right. Up to that moment there seemed to have been no necessity for him to sound the horn of his car and had he sounded it right then it would have accomplished no purpose. Under our appreciation of the facts in this case,- considering the manner in which the accident occurred, plaintiff’s failure to blow his horn did not contribute to it and the proximate cause, in our opinion, was the negligence of the driver of the Thompson car for which the insurer, defendant herein, must be held responsible.

For the reasons stated it is now ordered that the judgment appealed from be and the same is hereby reversed, annulled and set aside and it is further ordered that there be judgment in favor of the plaintiff, Jacques P. De La Vergne, and against the defendant, Employers Liability Assurance Corporation, Ltd., in the sum of $167.79, with legal interest fi;om date of judicial demand, and for all costs in this proceeding.

OTT, Judge

(dissenting).

I agree with the majority opinion in so far as it concurs in the finding of the trial court that Mrs. Thompson was guilty of negligence in failing to see plaintiff approaching from the rear and in failing to give a proper signal for a left turn as required by statute, but I disagree with the majority opinion in holding that plaintiff was not guilty of such contributory negligence as to bar his recovery. In my opinion, the trial judge correctly held that the failure of the drivers of both cars to observe the laws of the road contributed and combined to cause the accident.

Whether or not we consider the fact that plaintiff attempted to pass Mrs. Thompson at the north fork of the intersection as a factor increasing the danger of passing at that point, it remains a fact that plaintiff attempted to pass her at a rate of speed from 40 to 50 miles per hour without giving any signal or warning whatever of his intention to pass. Mrs. Thompson was not going over 20 miles or so per hour, and plaintiff admits that she was slowing down. If her action in slowing down just before reaching the north prong of the intersection was not sufficient to put him on guard to watch the movements of her car, the statute itself, Rule 7(b) of Section 3 of Act 286 of 1938, placed 'on him the duty of giving Mrs. Thompson an audible signal of his intention to pass.

While I agree with the statement made in the majority opinion that one of the purposes of requiring the driver of the overtaking car to give a signal to the driver of the forward car is to favor the driver of the overtaking car by causing the driver of the forward car to give way and make room for the rear car to pass, yet there is another purpose, equally as important, to warn the driver of the forward car so that he may not endanger his own safety by turning to his left and getting in the way of the on-coming car. The forward car has as much right to get over on the left side of the road as does the following car. Driving on the left side of the road is recognized as dangerous and for that reason the driver of the car who gets on the left side of the road to pass another car is required to take the precaution of giving' proper signals.

Of course, if the. actions of the driver of the forward car are such as to clearly indicate that he is aware of the intention of the driver of the following car to pass, there would be no need for the latter to give a signal. There is nothing in this case to show that the plaintiff was justified in assuming that Mrs. Thompson knew that lie intended to pass her at that point.

In my opinion, the holding in the majority opinion is in conflict with the holding in the cases of Ellzey v. Booth Furniture and Carpet Co., Ltd., 2 La.App. 431 (on rehearing) pages 434, 435, and Dejean v. Beridon, La.App., 150 So. 25. It seems to me that the following expression of the court in the first of these cases is pertinent and. applicable here: “The main if not sole purpose of requiring the passing vehicle to signal is to notify the driver of the vehicle to be passed so that he may make way. If the signal is not given or so given'as to be evident that it is not heard, it seems to us that the negligence of the passer- in trying to pass is fully as great as that of the other party in turning to the left.”

The law is so well stated on this point by Blashfield, Vol. 2, Cyclopedia of Automobile Law and Practice, § 938, beginning at page 86, that I feel justified in quoting three paragraphs from that section as follows :

“An automobilist approaching a vehicle from the rear must exercise such care as a man of ordinary care and prudence would use under similar circumstances to give and communicate warning of his approach to the driver of a vehicle in advance. It is ordinarily provided by statute that the overtaking driver must give proper warnings, such as a signal with bell or horn, before undertaking to pass the other. These statutes should be liberally construed for the purpose of including such travelers as may be deemed to have been within the in-tendment of the Legislature.
“Under such statutes or ordinances as they are usually framed, the duty of the driver in front to go to the right arises only on notice from the driver of the rear vehicle, if the driver of the front vehicle is not otherwise apprised of the approach of the rear vehicle; and the driver in advance is not bound at his peril to know that the driver in the rear desires to pass. A failure to give this signal from the required distance is not negligence as a matter of law, howev.er.
“In a country highway, if the driver of the rear car wants to pass the car in front of him, he must not only sound his horn, but, before he attempts to pass, he must be reasonably assured that the man ahead knew he was behind, had heard the request, and accorded the right of way, before the driver of the car in front can be charged with negligence in failing to give the right of way by reason of a usual use of the roadway.”

The case of Cantrell et al. v. H. G. Hill Stores, Inc., La.App., 193 So. 389, relied on by plaintiff, involved an accident on a much traveled street in the City of New Orleans, and the reason given by the court in that case for absolving the truck driver in passing children on a bicycle from negligence for a failure to give a signal before passing the children was because as Blash-field says in the section above cited cars pass so frequently and continuously on a much traveled city street that the forward motorist is presumed to know that these 'cars may pass at any time without giving any signal.

In my opinion, the cause of the accident was the combined negligence of the drivers of both cars in failing to observe the plain and mandatory provisions of the law regulating traffic on the highways of the State, and the trial judge correctly so held.

I therefore respectfully dissent.


author: DORE, Judge.

text:
    WILLIAMS v. MAYER.
    No. 2268.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Rehearing Denied Nov. 19, 1941.
    Writ of Error Refused Jan. 5, 1942.
    Loret, Percy & Bailey, of Baton Rouge,. for appellant.
    Marian Mayer, of New Orleans, and Johnson & Kantrow, of Baton Rouge, for. appellee.
   DORE, Judge.

This is an appeal from a judgment sustaining an exception of no cause of action. Plaintiff, in his petition, alleges that he fell down the stairway of a building owned by the defendant, in the City of Baton • Rouge, and operated on the second and third floors as a hotel with the entrance thereto by vestibule on the first floor, fronting on Third Street, and a stairway leading therefrom to the second floor. Plaintiff alleges that he had visited a group of friends in one of the rooms of the said hotel, at least one of whom was a guest of the hotel; that while descending the stairway in the act of leaving the hotel he tripped and fell down to the vestibule at the entrance, striking himself against the wall, and sustaining the severe injury set out in his petition, for which he claims damages. Plaintiff alleges that the cause of his tripping on the said stairway, when he was about half way down from the second floor to the entrance, was some old worn and torn mats on the stairway which were in need of repair and which had holes and slits in them, creating a kind of trap to his feet as he descended the stairway; that the said stairway was extremely dimly lighted and that there were no handrails on either side for holding on, thus making it impossible for him to regain his balance after tripping or to steady himself while descending the stairway. In other words, the charges of negligence against the defendant are: (a) In permitting the mats on the steps to become in such condition as to cause him to trip and fall and in failing to properly keep the stairway in a proper state of repair; (b) in failing to provide handrails on the sides of the steps; (c) in failing to maintain proper lighting of the steps; all of which caused a trap to those lawfully upon the premises.

From the allegations of plaintiff’s petition, which, for the purpose of passing on the exception, must be accepted as proven, the plaintiff must be regarded as a person lawfully upon premises in which defendant was operating a hotel. The question of the ownership of the premises, for the determination of this case, has practically no bearing on the case. We are of the opinion that this case, if liability is to be found, rests on Articles 2315 and 2316, Civ.Code. Article 2315 provides that: “Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it”. Article 2316 provides: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” These articles and the articles following form the basis of our tort law.

The learned counsel for the defendant very properly says that there must be a duty before there can be negligence ; but when he says that since plaintiff was only a guest of a guest of the said hotel, defendant did not owe to the plaintiff any other duty but not to wantonly and willfully cause him injury, and that since plaintiff had made no such showing, then the exception was properly sustained and plaintiff’s suit properly dismissed and that the judgment should be affirmed, we cannot agree with him.

It is our opinion that by the very nature of conducting a hotel, the keeper or operator invites the public to visit the premises and the hotel guests. Plaintiff had an implied if not a tacit invitation and permission to visit the guests of the hotel. We are further of the opinion that the owner'and operator of a hotel is under duty to furnish safe premises which may be used by persons legally therein in the ordinary and reasonable way without injury. We are further of the opinion that the owner and operator of a hotel should provide reasonably safe ways of ingress and egress for those legally therein and should exercise care to keep a stairway and vestibule well lighted and free from obstructions. However an improper motive or purpose in going to a hotel will alter the status of such persons rendering them trespassers to whom the hotel operator owes no duty except to abstain from willful or wanton injury.

Viewing the action from this standpoint, plaintiff’s petition sets out the facts that defendant was negligent in his duty towards him, in not providing a safe way of ingress and egress and in his failure to exercise ordinary care to keep the stairway and vestibule well lighted and free from obstructions.

We admit that the operator and owner of a hotel is not the insurer of his guests nor of those visiting the guests. Plaintiff was legally in the building and was injured without any contributing fault on his part and as the result of the negligence charged to the defendant, whose duty it was to see to the safety of the stairway. Whether or not the plaintiff can sustain his action on the trial upon the merits is another question which has not yet been before the district court. On the trial of the case, the defendant may prove that he was free from any negligence and be absolved from any liability. Defendant is not required to foresee, however, that an accident may happen, all of which goes to the merits of the case rather than to the exception of no cause of action. We are of the opinion that a cause of action is alleged and that the exception should have been overruled.

For these reasons assigned, it is ordered, adjudged and decreed that the judgment of the district court he, and it is hereby annulled, avoided, and reversed; and it is now ordered, adjudged and decreed that the exception of no cause of action be overruled and that the cause be reinstated in the District Court for the Parish of East Baton Rouge, there to be proceeded with in accordance with the law and the views herein expressed, defendant to pay costs of this appeal, all other costs to await the final determination of the suit.


author: OTT, Judge.

text:
    W. F. BROWN & SONS, Inc., v. EASTERLY.
    No. 2279.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Elliott & Elliott, of Amite, for appellant.
    Reid & Reid, of Hammond, for appellee.
   OTT, Judge.

The plaintiff alleges that it is the holder and owner for-a valuable consideration before maturity of a certain promissory note executed by the Merchants" & Farmers Selling Association for the sum of $1,075, dated February 4, 1936, due one year from date, payable to the order of plaintiff, with interest at the rate of 8 per cent per annum from date, and providing for ten per cent attorneysi fees; that said note was endorsed before delivery by S. B. Easterly and Ernest S. Easterly. The note is annexed to the petition and made part thereof.

This suit is against Ernest S. Easterly alone to recover the amount of the note, interest and attorneys fees, with reservation by plaintiff of any rights it may have against “the Merchants & Farmers Selling Association and the heirs of S. B. Easterly, who is now deceased”.

The principal defense set up by defendant Easterly is that there was no consideration flowing from plaintiff to the maker of the note, the Merchants & Farmers Selling Association, a Corporation, hereafter called the Association; that said Association owed plaintiff nothing and received no consideration whatever for said note; that said note was and is not a binding and enforceable obligation against said maker and, accordingly, defendant Easterly, as endorser, cannot be held liable on a note which is invalid for lack of consideration to the maker.

The answer of Easterly sets up in detail the reason for his endorsement of said note, in substance, as follows: that in June, 1931, the plaintiff sold to S. B. Easterly and this defendant certain property in' Denham Springs for a consideration of $12,000, of which amount the sum of $4,000 was paid in cash, and for the balance of $8,000, the two Easterlys executed six notes, secured by vendor’s privilege and special mortgage on the property, which notes matured annually over a period of six years, with interest of eight per cent per annum from date until paid; that said S. B. Easterly and defendant became financially involved and were unable to pay said mortgage notes, and after four of the notes had matured, the plaintiff demanded that the property be re-transferred to it without allowing them any credit for the cash payment made on the property, and in addition thereto, that said S. B. Easterly execute and deliver to it a note of the said Association, endorsed by S. B. Easterly and defendant herein, Ernest S. Easterly, said re-transfer- to extinguish and cancel all indebtedness on account of the mortgage and vendor’s privilege notes which they had given in the purchase of said.property.

As a further reason for endorsing the note herein sued on, defendant alleges that he and S. B. Easterly were indebted to a local bank in a large amount which they were unable to pay, and that this bank was controlled by the plaintiff, and he feared that plaintiff would induce said bank to press him and S. B. Easterly on said indebtedness unless he and said S. B. Easterly re-transferred to plaintiff the property which they had purchased from it and endorsed the note for $1,075 herein sued on.

And as an alternative defense, the defendant alleges that if there was ever any liability on the part of said Association on said note (which liability is denied for the reason, as stated, that no consideration was received therefor and for the further reason that S: B. Easterly was never authorized to issue the note for said Association) then any liability on account of said note has been discharged by reason of the dissolution and liquidation of said Association as a corporation in 1938, as no claim was urged by the plaintiff herein during the process of said liquidation which was carried on according to law and by giving notice to all creditors.

. From a judgment in favor of plaintiff against the defendant for the full amount of said note, interest and attorneys fees, the latter has appealed.

The note which forms the basis of this suit contains the following promise on its face: “One year after date, I, or we, the signers, endorsers, sureties, or any of us, promise in solido to pay to the order of W. F. Brown & Sons, Inc., Amite River Bank, Denham Springs, La., one thousand seventy five & no/100 Dollars, for value received, with interest from,date at the rate of 8 per cent per annum, with all cost of collection, including ten per cent attorneys fees”. The note is signed “Merchants & Farmers Selling Assn, By S. B. Easterly”, and is endorsed on the back by S. B. Easterly and this defendant.

Under the terms of the note above quoted the defendant made himself primarily and unconditionally liable for its payment as to the payee and holder to the same extent and in the same manner as though he had signed on the face of the note as a maker. Bonart v. Rabito, 141 La. 970, 76 So. 166; Continental Bank & Trust Company v. Bouterie et al., La.App., 169 So. 812; Section 192 of Act 64 of 1904, the Negotiable Instrument Law.

This defendant is therefore bound on the note to the same extent as a maker or principal. He has not pleaded lack of consideration flowing to him to support the obligation on his part as one primarily and unconditionally bound for the payment of the note. “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value”. Section 24 of Act 64 of 1904, Dart’s Gen.Stat. 813.

Even though the maker of the note might not be liable on it for want of a valuable consideration or because the person signing the note for the Association had no authority to do so, the defendant cannot escape his primary and unconditional obligation to pay the note unless he alleges and proves that neither he nor any of the others primarily liable on the note received no consideration, in which case the promise of all parties to the note as to their immediate payee would be nothing more than a nudum pactum.

Instead of allegations and proof on the part of defendant that he received no consideration for binding himself primarily and unconditionally to the plaintiff, the answer which he filed and the evidence produced on the trial show that both he and S. B. Easterly received consideration for thus binding themselves unconditionally to pay the note. They were obligated to plaintiff under past due mortgage notes in the sum of $8,000, with 8 per cent per annum interest on that amount for more than four and a half years. As a consideration for the release of this obligation on their part, they retroceded the property to plaintiff which they had purchased from it and had used during this period, and in addition thereto unconditionally bound' themselves to pay plaintiff the note herein sued on.

Learned counsel for defendant insist that, as the deed of retrocession recites that the re-transfer is made in consideration of the cancellation of the mortgage notes and interest due by the transferors on the property and nothing is said in the deed about this note as additional consideration, parol testimony is inadmissible to show that the consideration for the note was their release from liability on these mortgage notes. But this is not a suit attacking or affecting the deed of retrocession, in which case the parties to that deed, might be precluded from denying the consideration mentioned in the deed, or in showing additional consideration, in order to support or nullify the transaction. Here the testimony was to show a consideration for the note sued on and was admissible for that purpose even though it did show a different consideration from that recited in the deed of retrocession. See McConnell v. Harris Chevrolet Co., Inc., La.App., 147 So. 827, and cases there cited.

The alternative defense to the effect that the liquidation of the Selling Association and its discharge from any liability which it might have incurred as maker of said note, is likewise untenable, as the liability vel non of said Association could have no effect on the primary liability of this defendant who can be sued on the note irrespective of any liability of the Association thereon. Beaird Corporation v. Johnson, La.App., 152 So. 789.

For the reasons assigned, the judgment appealed from is hereby affirmed at the cost of appellant in both courts.


text:
    GRECO v. FEDELE.
    No. 2283.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.

      Rownd & Tycer and Ben N. Tucker, all of Hammond, for appellant.
    Reid & Reid, of Hammond, and Henry P. Viering, of New Orleans, for appellee.
   DORE, Judge.

On May 24, 1939, the plaintiff sold to the defendant 10 acres of land in Tangipahoa Parish, with improvements thereon, for a recited consideration of $1,000, $200 of which was paid in cash, and for the remainder of the purchase price the defendant executed her four certain promissory notes of $200 each, bearing date of the sale, maturing respectively in one, two, three and four years from date, with 8% interest thereon from date and providing for 10% additional on both principal and interest unpaid as attorney’s fees in the event of suit. The plaintiff, as vendor, retained a vendor’s lien and privilege, and defendant granted a special mortgage on the property to secure said notes. There is contained in the act of sale and mortgage an acceleration clause providing that in the event of failure to pay the note or notes on maturity, all outstanding unmatured notes shall become due and exigible. The defendant failed or refused to pay the note, with interest, maturing on May 24, 1940; the plaintiff, exercising his option under the acceleration clause, filed this executory process or foreclosure suit to have the property seized and sold in satisfaction of the amount due him and to have his vendor’s lien and privilege and mortgage recognized and enforced to pay and satisfy the amount due him from the proceeds by preference and priority. An order of executory process was signed by the Judge and the usual demand to pay was served on the defendant.

Defendant, in opposition to the order of seizure and sale, filed a petition wherein she admits that she purchased the property as set out, and made the payment of $200 and executed the notes on the date alleged. She alleges, however, that after she had purchased the property, paid the $200 and had executed the four notes, she was informed that plaintiff was not the owner of the property which he had sold to her, that the property had been adjudicated to the State in the name of Basile and Dominic Fedele for the nonpayment of the taxes for the year 1931, and that the title, at the time of her purchase, was in the State of Louisiana. She alleges that the sale to her was therefore null, and void and that she is entitled to have 'the same set aside and annulled and to have the notes cancelled and to recover from the plaintiff the sum of $200 paid to him at the time of the execution of the sale. She further alleges that she is entitled to a temporary writ of injunction prohibiting the executory process, and, upon trial, for a permanent writ of injunction. Her prayer is in accordance with her petition.

A rule nisi issued directing the plaintiff to show cause why a preliminary writ of injunction should not issue. To the rule the plaintiff, defendant in injunction, filed an exception of no right or cause of action, which was overruled. Upon the trial of the rule a temporary writ of injunction was ordered, enjoining the Sheriff and the plaintiff in the original suit from selling the property.

Thereafter, plaintiff Greco, defendant in the action for the rescission of the sale and for the injunction, filed an answer in which he alleged that defendant, Mrs. Fedele, at the execution of the sale, while knowing that the taxes on the property had not been paid and that the property had been sold to the State for the nonpayment of the taxes, assured him that all taxes due on the property had been fully paid and that there were no delinquent taxes assessed or due upon the property. He further averred that Mrs. Fedele had been occupying the property prior to her purchase and that she had obligated herself to pay the taxes which might become due; and if she failed to do so, she is barred from setting aside the sale or refusing to pay the notes as they become due. He further alleged that since Mrs. Fedele had not been evicted from the property that her suit to annul the sale was premature.

Greco further alleged that he purchased the property from Elie E. Duet, a resident of the Parish of Jefferson, on July 12, 1933, fey authentic act, duly recorded in the conveyance records of the Parish of Tangi-pahoa, in which said deed the said ■ Duet warranted the title of the property. Greco called Duet in warranty to defend the title of the property and asked that if judgment be rendered against him, then and in that «vent that he have like judgment against his warrantor, as well as for all the losses and damages sustained by him, and particularly the consideration paid by him to Duet, with interest and costs.

Duet, in appearing to the call of warranty, filed what he terms a plea of estoppel against Greco on the ground that the latter had possession of the said property from July 12, 1933, until he sold it to Mrs. Fedele, and enjoyed all the fruits and revenues produced by the said property for more than six years; that in the deed by which he transferred the property to Greco the provision was made that he, Duet, was under no obligation to pay the taxes on the property. Duet annexed to this plea a copy of the deed which he made to Greco on July 12, 1933.

The case was tried and resulted in a judgment in favor of defendant and against Greco annulling and rescinding the sale of the property to the defendant and condemning Greco to refund to th'e defendant the sum of $200 paid by her on the purchase price. The preliminary writ of injunction was made permanent, enjoining Greco and the Sheriff from selling the property. The call in warranty made by Greco against Duet was dismissed. The plaintiff has appealed.

It appears from the record that on May 5, 1929, Joseph Fedele, who was the owner of the property in question, transferred it, together with some other property, to Dominic Fedele and Basile Fedele, apparently for some purpose which is not disclosed by the record. On July 22, 1931, Joseph Fedele sold the property in question to Elie E. Duet, apparently disregarding the deed he had made to Dominic Fedele and Basile Fedele, supra. However, Dominic Fedele and Basile Fedele executed deeds to Duet on July 23, 1931, disclaiming any interest in the said property. By these sales, on July 23, 1931, the property was in the name of Duet. In the deed from Joseph Fedele to Duet it is stated that the taxes for the year 1930 were paid. The deed did not recite who was to pay the taxes for the year 1931. The property, however, was assessed for that year in the name of Dominic Fedele and Basile Fedele, the record owners when the assessment was made for that year.

The taxes were not paid for the year 1931 and the property was adjudicated under the names of Dominic and Basile Fedele to the State in November, 1932, but this adjudication appears not to have been recorded until March, 1934. On July 12, 1933, after the property had been adjudicated, to the State, Duet executed a deed to the property ■in favor of Greco, which deed seems to have been executed to release Duet from a note which he had endorsed for some $1,555, plus a recited consideration in the deed of $100 in cash. It was also stipulated in this deed that if Duet or anyone designated by him should pay to Greco the amount of said note, with interest, within a period of three years from that date, Greco agreed to re-transfer the property to Duet. After the expiration of the said three years, Greco was to have the right to sell the property to anybody that he saw fit, and if the property brought enough to pay the note, interest and costs, any surplus was to be paid to Duet. • It was further agreed that if Duet failed to pay the taxes assessed against the property, Greco was to have the right to cancel the redemptive agreement; and it was further provided that Duet was, however, under no personal obligation to pay the taxes on the property.

The property was homesteaded by a third party from the State under Act 235 of 1938, in October, 1939, thus cutting off any right of redemption of the property for the tax adjudication to the State.

It is obvious that the property which Greco undertook to sell to the defendant in 1939 did not belong to him, for the reason ’that the title was then in the State of Louisiana. It further- follows that the sale from Greco to the defendant was null under Article 2452 of the Civil Code.

The defendant had a right, under Article 2557 of the Civil Code, to refuse to pay the balance of the purchase price as she had then reasons to fear that, she would be evicted from the property by another. It is 'now well settled that the purchaser may not only refuse to pay the balance of the purchase price where suit is brought to collect it, but may in the'same suit ask for a rescission of the sale and to refund what he has paid,.when it develops that he may.be evicted from the property because his vendor was not the owner, the same being null. See Wamsley v. Hunter et al., 29 La. Ann. 628; Bonvillain v. Bodenheimer et al., on rehearing, 117 La. 806, 42 So. 277; Brewer et al. v. New Orleans Land Co., 154 La. 446, 97 So. 605.

From his answer to the demand of Mrs. Fedele, Greco seems to take the position that she agreed to pay the taxes on the property. In Articles 3 and 10 of his answer he makes the allegation of her agreement to pay the taxes while she occupied the property. He does not allege that she was occupying the property in 1931 or had agreed to pay the taxes for that year. On the trial of the case he evidently attempted to prove by parole testimony that she was residing on the property and had made such an agreement. It is our opinion that this parole testimony was correctly ruled out. The deed from Greco to the defendant warranted the title of the property and he cannot now be heard to prove by parole that his vendee had agreed to pay taxes on the property two years prior to his acquisition. In fact, in 1933, when Greco acquired the property from Duet, it had already been adjudicated to the State for the taxes for the year 1931.

We are of the opinion that the judgment is correct in so far as it annuls the sale and enjoins Greco and the Sheriff to sell the property and in so far as it orders Greco to return to the defendant the amount she paid.

As to the call in warranty, the plea of estoppel filed by the warrantor, Duet, was overruled on the day of the trial of the case. Duet objected to going to trial prior to his answer being filed, contending that he was entitled to have the issue joined as to him and Greco. Regardless of his objection, the case went on trial on the merits, and, as previously stated, the trial judge dismissed the call in warranty. On what basis the trial judge dismissed the call in warranty we are unable to understand. However, since the issue had not been joined between the warrantor, Duet, and Greco, the trial judge was unable to pass upon that part of the case. It is our opinion that the judgment dismissing the call in warranty was erroneous. Greco has his recourse, however, on his warranty under Article 385 of the Code of Practice, and for that reason we will dismiss the call in warranty as in case of. nonsuit, and the judgment of the District Court will thus be amended.

For these reasons the judgment appealed from in-so far as it was in. favor of Mrs. Joseph P. Fedele is confirmed and the judgment against plaintiff Greco dismissing the call in warranty is amended by decreeing that the call in warranty is dismissed as in the case of' nonsuit, all at the cost óf plaintiff appellant.


text:
    KEOWEN et al. v. AMITE SAND & GRAVEL CO. et al.
    No. 2273.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 8, 1941.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellants.
    Warren O. Watson, of Baton Rouge, for appellees.
   LeBLANC, Judge.

In this suit a father and mother are seeking to recover damages for the death of their nineteen year old son, Carroll Keowen, who was killed in an automobile collision on Sunday, May 28, 1939, at about 12:30 o’clock in the afternoon. The demand is for the total sum of $27,700, and is made in solido against Albert Fitzgerald and Frank Fitzgerald who compose the commercial partnership known as Amite Sand & Qravel Company, owner of the truck involved in the accident, James Turner, the driver of the truck .and New Amsterdam Casualty Company, the carrier of public liability insurance on the said truck. The automobile on which their son was riding belonged to him and was being driven at the time, by his brother, .Keith Keowen.

The collision occurred on a road known as the Hooper Road,. having a gravel surface, at a point where it makes a ■ rather sharp turn from south to northeast and forms a fork with another . road which continues directly north known as the Black Water Road. The road which continues on northeast is also called the Hooper Road. This road, before making the curve at the fork, measures about 21 feet in width between ditches on each side and at the end of the curve on the northeast, 24 feet. The opening right at the intersection where the fork is made is much wider and a straight line projected from the beginning, of the curve on the south side to the point where it connects with the Black Water Road on the north measures approximately 90 feet. • This intersection is approximately 10 miles north of the City of Baton Rouge in East Baton Rouge Parish.

In their petition the plaintiffs aver that on the Sunday of the accident their two sons and several friends were returning home from swimming in the Comite River at a point where it is crossed by the Hooper Road. The car which was a Ford Tudor Sedan belonged to Carroll but Keith was driving and Carroll was riding on the left front fender. They were proceeding north on the extreme right-hand side of the Hooper Road at a moderate rate of speed, not in excess of 25 miles per hour, when on reaching a point approximately 20 feet south of the intersection, the gravel truck of the defendant Amite Sand & Gravel Company, loaded with 3% yards of gravel coming west out of the intersecting road, suddenly turned south to its left into the road on which the car was and crashed into its front end. As a result of the collision, they aver, their son Carroll had his left leg torn off at the hip, his left arm broken, a severe cut on the head and suffered other injuries all of which caused his death about a half hour after they had reached Our Lady of The Lake Sanitarium in Baton Rouge where he had been taken immediately after being picked up.

They further aver that their son, Carroll, contributed in no way to the accident which was caused entirely and exclusively through the negligence of the driver of the truck, James Turner, who was acting within the scope of his employment by the Amite Sand & Gravel Company, and that of the said company, in the following particulars: (1) In operating an overloaded truck on the highway, making it more difficult to be handled and controlled in traffic; (2) in operating it at an ■ excessive rate of speed said to be 30 miles per hour and not slowing down or stopping before making a left-hand turn on a much travelled highway and (3) in proceeding at a blind corner on the left-hand side of its lane of travel in wanton disregard of the rights of others on the highway.

The defendants filed a joint answer in which it is admitted that a collision dc-curred at the place and on the date alleged by plaintiffs in their petition between the Ford car being driven by their son, Keith Keowen, and a truck of the Amite Sand & Gravel Company being driven by James Turner, in which Carroll Keowen was injured and died as a result thereof, but in which otherwise all issues raised in the petition are sharply controverted. We might mention at this time however that it was definitely shown that Turner was, at the time, engaged in the service of his employers and the question of their liability and that of their insurer in the event his negligence is found to be the sole and only cause of the accident, is no longer contested.

In the answer of the defendants it is alleged that Turner was driving the truck going west on the Hooper Road in a careful and prudent manner on the north, or his right side of the road at a speed not in excess of 15-miles per hour and that on reaching the curve at the intersection he did not make a short turn to his left but on the contrary his turn was a long and wide one into the intersection, holding the truck north of the center of the road. That he had thus rounded the curve and had already straightened the truck out and was proceeding south on his right side when he observed the Ford automobile approaching from that direction in the center of the road; that at that moment he was driving at from 12 to 15 miles per hour while the Ford was going approximately 35 miles and although he was on his side of the road and with every rea.-son to believe th.e Ford would turn to its side so as to meet him in safety, he nevertheless pulled the truck still further to the west side of the road as far as he could but the driver of the Ford, instead of pulling his car to the east, continued down the center of the road and struck the truck a side-swiping blow. The failure of the driver of the Ford car in not paying any attention to the truck, if he saw it at all, and his refusal to turn to the east on his right side of the road, they aver, was the grossest carelessness and negligence on his part which continued to the very moment of the accident and was the proximate cause of the collision and its resulting damage.

In the alternative the defendants plead contributory negligence on the part of' the deceased boy in riding on the fender of his automobile and also contributory negligence on the part of Keith -Keowen, the driver of the car, all of-which negligence is imputable to their parents, the plaintiffs herein, and stands as.a bar to their recovery.

The trial of the case lasted several days and a rather voluminous record was made up. The trial judge in an elaborate written opinion, after having analyzed the testimony in detail, reached the conclusion that the accident was caused by the’ negligence of the truck driver and that the defendants had not sustained their pleas of contributory negligence. ■ He accordingly rendered judgment'in favor of the plaintiffs and against all defendants, in solido, for the sum of $10,000. A new trial was asked for but refused, the district judge again assigning written reasons, whereupon this appeal was taken.

The vital issue presented, as can be readily inferred from the statement of the case under the pleadings, as herein made, is with regard to the point in the road where the collision actually took place in relation to the curve and also to the east or west side of the road itself. The plaintiffs contend that it was at a point directly or nearly opposite a mail box on the east side of the road right where the curve begins from the south towards the northeast, while the defendants claim that it was on the west side of the road at some distance south of a point on the west side directly opposite the location of the mail box post on the east. The plaintiffs rely mostly on the testimony of eyewitnesses, including six boys who were in the Ford car and survived the accident, whereas the defendants, having produced only the truck driver as an eyewitness, depend principally on physical facts to support their contention.

Besides the two Keowen boys there were five others riding in and on the Ford car. Charles Denham was riding on the right front fender as was Carroll Keowen on the left. Apparently they seem to have been supporting themselves by each placing a leg around the headlight on their respective sides of the automobile. T. F. Carpenter occupied the front seat on the right next to Keith Keowen, the driver. On the rear seat were Jessie Denham in the middle, Richard Carpenter on his right and Gordon Richardson on his left. These boys all lived in the vicinity where the accident occurred and apparently they were all friendly.

They had not all gone out together that morning. Those who had not gone swimming had been shooting at rifle target and met the others at the Comite River bridge Some distance south from the intersection in the road. They were invited to ride back home by the Keowen’s and boarded the car in the manner just indicated. One of them offered to ride on the left front fender but Carroll insisted that he get inside the car and that he would take that place. As far as their testimony shows the car was being driven at a speed of about 25 miles per hour. Keith Keowen states that he was going about 25 and in this estimate he is supported by Jessie Den-ham and Richard Carpenter. Cha des Denham and Gordon Richardson estimated the speed at from 20 to 25. miles. T. F. Carpenter does not seem to have testified concerning the speed of the car.

All these boys testified that there were numerous obstructions in and around the curve at the fork in the road consisting of sign boards, trees with overhanging branches and shrubbery, all of which made it impossible for a driver of an automobile approaching it from either side to see traffic coming from the opposite direction. Turner himself testified to the same effect and that seems to be an established fact.

The six boys all state most positively that the car was being held to its right-hand side of the road, that is on the east, Keith Keowen, Charles Denham and T. F. Carpenter stating that it was about a foot and a half from the ditch along that side. Not one of them saw the truck until it was practically in front of them and had struck the car at a point which they all fix approximately opposite where the mail box of H. O. Denham formerly stood on the east side of the highway just about where the curve towards the northeast begins. Most of them were positive in their statement that the truck was rounding the curve on the inside and came almost directly in the path of the car and all that some of them had time to do was to cry out, "Look out” or “Pull over.”

There was a bus or van occupied by quite a number of negros travelling on Hooper Road going west toward the intersection. The truck passed ahead of this bus at a point which is not definitely fixed according to the testimony of several of its occupants. Two of them, Willie Coleman and Norris Johnson, say that it passed them in front of John Hooper's house which Coleman places some 300 feet from the curve. Johnson says that it is a short distance east of the intersection. Other -witnesses who were in the bus, particularly Henry Franklin, the driver, states that the truck passed them at or near a bridge which is shown to be 1950 feet east of the curve. Coleman and Johnson testified as witnesses for plaintiffs, Franklin and three others for the defendants. Some of them estimate the speed of the truck at 35 miles per hour, others say it was going “pretty fast.”

Coleman, who was seated on the north side of the bus, facing west, says that after the truck passed the bus it held to its right side of tlie road until it got to the curve. The driver then swung it to the left of the curve and ran into the car. Johnson was seated in the front of the bus near the door on the right. He testifies that after the truck passed them, “it cut short” around the curve and the wreck happened.

Opposed to the testimony of these several eyewitnesses for the plaintiffs, we find that ■of Turner, the truck driver. The negro passengers in the bus who were called as witnesses for defendants do not claim that they saw the accident and their testimony ■seems to be relied on for the purpose of impeaching that of Coleman and Johnson, as Franklin malees the direct assertion that it was impossible for any one on the bus to see the collision and that-might be implied from the testimony of the others also.

Turner testified as a witness under the hostile cross-examination statute and was never called by the defendants as their own witness. His testimony is that when he got to the curve in the road he slowed down, looked to see if there was traffic approach- . ing from either side, and seeing none “turned out” and shifted into third speed between 12 and IS miles an hour and as he “got straightened out in the road” he ■saw the Keowen car coming at an estimated speed of 30 or 35 miles. He cut towards the ditch as far as he could and the crash came.

Defendants also called a witness by the name of J. B. Watts who lives on the west side of the Black Water road more than 200 feet from the point where the Hooper" Road curves into the Black Water Road and over 100 feet distant from the Black Water Road itself. Mr. Watts says that he was sitting on his front porch and had a clear view of the intersection except for some sign boards situated on the west side of the Hooper Road and facing that road as it emerges from the west into the curve leading south. He saw the truck coming west when it was past the Hooper house hut did not see the actual collision between it and the automobile because his view was then obstructed by the sign boards just referred to. He saw the truck pass between a sign called the Peterson sign and a Coca Cola sign and then lost sight of it. He claims that if the collision had happened on the east side of the road where witnesses for plaintiffs say it did, he would have seen it because that point was directly in his line of vision. To support his testimony to that effect defendants had a civil engineer project on his map or sketch of the intersection two diverging lines from the point Mr. Watts is said to have been sitting on his porch so as to focus his vision on the intersection and the point at which it is fixed is just about where the boys in the car say the' collision took place. From this it is implied that Mr. Watts, with his eyes concentrated on the truck, would necessarily have seen the impact had it taken place there.

Realizing, no doubt, that from the standpoint of eyewitnesses’ testimony the overwhelming preponderance was against them, the defendants attack that of the boys aboard the Ford car on the ground that it is all so similar, even in slight details, that it had been practically agreed upon before they testified, and that of the two ne-gros, Coleman and Johnson, on the ground that it had been impeached by the other occupants of the bus. Principally however they seem-to rely on several physical facts which they contend refute all the direct testimony produced by the plaintiffs.

We are not strongly impressed by the criticism made of the testimony of the six boys who witnessed this terrible accident. Some of them admit that they had talked among themselves about it and what would be more natural after such a fateful event in their young lives. They might also have agreed as to certain facts in discussing it one with another but there is certainly nothing shown by this record which could warrant the assumption that they deliberately planned how they each would testify in the case. In the main they may be said to agree on the more important features of the accident although in some details they differ in certain respects. Much is said about all of them being so certain that the collision took place at a point right near the Denham mail box on the east side of the road. But they all tell how familiar they were with that mail box' and it seems natural that in spotting the place of impact they would associate it with some object nearby and that is the one which impressed them all. They do not all pretend that the blow took place precisely in a direct line from the mail box but they do all insist that it was right near that point. In several other matters such as the location of Carroll’s body and the places where the truck and the car came to rest after the accident, their testimony is corroborated by that of nearly all the witnesses who came upon the scene immediately after. We are unable to find anything in the record to warrant the conclusion that theirs was rehearsed testimony.

With regard to the witnesses Coleman and Johnson, if the purpose of the testimony of the other negros in the bus was to impeach it, the effort, in our opinion, was futile because three of them, Edward Archer, Samuel Gins and Robert Lee Jackson, practical!y admit that they weren’t paying much attention and could only remember either the truck passing the bus or hearing the noise made by the impact. Franklin is the only one who says that it was impossible for any of those in the bus to see the collision. He admits however that the passenger seats in the bus were a foot higher than his driver’s seat, and besides that, assuming that the ratio of speed which he fixes between the truck and the bus was correct, at the very most the bus was about 500 feet from the curve as the truck entered it, and from that distance, as appears by a photograph of the locus filed in the record, there seems to he no reason why Coleman and Johnson could not have followed the course of the truck as it rounded the curve.

The testimony of Mr. J. B. Watts is purely of a negative character and the result of certain conclusions on his part which have to yield to the direct testimony of the numerous other witnesses.

After the accident was over the body of the injured boy was picked up at a point near the ditch on the west side of the road about 29 feet south of the Coca Cola sign which is situated right where the curve in the intersection is. The truck came to rest in the ditch on that side of the road about 64 feet further south. The Ford car continued to round the curve and came to a stop near the ditch on the southeast side of Hooper Road as it straightens out towards the northeast, about 25 or 30 feet from the mail box. Blood spots were found on the west side of the road a few feet south of where the boy’s body was. Later in the afternoon of the accident other objects described as pieces of torn in-nertubes, horn screen and broken glass were also seen on the west side of the road. These are the physical facts which defendants so strongly contend support the testimony of Turner, the truck driver, to show that the impact took place on the west or his right-hand side of the road.

Assuming that both vehicles were travel-ling at about the same rate of speed, the weight of the truck certainly gave it more .momentum and it is .reasonable to believe that it carried a greater distance after the impact than did the lighter Ford car. So, their respective locations after coming to rest is not determinative of the question on which side of the road the impact actually took place. The location of the injured boy’s body some 20 feet south of the Coca Cola sign, tends, in our opinion, to support the plaintiffs’ contention that the impact took place at a point in the road nearly opposite the Denham mail box as the mail box is a bit south of the Coca Cola sign and the distance from it to the place where the body was picked up would likely be the distance the force of the impact carried it. That it must have been struck with terrific force is borne out by the fact that the boy’s left leg was completely severed from his hip joint and was found dangling from the truck. The presence of the blood spots on the west side of the road furnish no stronger proof that the collision was on that side than does the presence of the boy’s body, and the finding of other objects there later in the afternoon afford still less proof on that point because they may well have been moved about by the large number of people who visited and walked around the scene of the accident from the time it occurred until found there by the witnesses who testified concerning them. Besides, we think that it is impossible to account for the manner in which objects are thrown from moving vehicles in a collision of this kind occurring in a curve on a road 21 feet in width.

Tracks made by the wheels of the truck are said to have been observed, and these were marked by witnesses for defendants, leading from a point near the ditch on the west side of the road to the point where it went into the ditch itself. The impression that is conveyed is that these tracks were parallel with the ditch and therefore that must have been the course of the truck before it went into the ditch. But witnesses for the plaintiffs, some of the very first persons to arrive at the scene, testify that they also saw tracks on the road leading to the truck from a point opposite the mail box on the east side of the road. They measured them for as long a distance as 12 feet and state that they ran diagonally across the road.

As important as any other is also the fact shown by the fall of Charles Denham from the right fender at the moment of the impact and his landing on the extreme right-hand side of the road north of the mail box, after which he rolled around the curve.

As we view them therefore the physical facts are not by any means entirely in favor of the defendants’ side of the case. At any rate they fall far short of overcoming the vast preponderance of positive and direct testimony given by the numerous eyewitnesses all of which leads us to the conclusion, as it did the learned district judge, that the driver of the truck was rounding the curve on the inside which was his wrong side of the road, and ran into the Ford car when it was on its right-hand side.

No negligence, as far as we can see, has been shown against Keith Keowen, driver of the Ford car. He was not driving fast and had the car under proper control being aware of the blind nature of the intersection. ‘His vision was not impaired by the presence of the two boys riding on the fenders and from the manner in which the truck drove around this curve on the inside, the accident could have happened whether they were riding the fenders or not. The same reasoning applies in disposing of the charge of negligence against Carroll Keowen for riding the left front fender, and moreover whilst in doing so he may be said to have assumed the risks incidental to the operation of the car by the one who was driving it, he did not assume the risks of the dangers created by the reckless, careless and negligent driving of the truck which ran into him. The pleas of contributory negligence were properly overruled and plaintiffs are therefore entitled to recover.

Regarding the amount of the award of $10,000 made by the district judge we find no reason to reduce the same. The parents of this deceased boy are well advanced in age, the father being sixty-six and the mother sixty-three years old. They are in poor health and the tragic death of their son was a severe shock to them. He was nineteen years old, was working for the Capitol Stores for moderate wages, from which he contributed regularly to their support, in groceries and other things, on an average of $2.50 to $3 each week. They can recover moreover for their son’s own suffering from the time of the accident until he died two or three hours later. He was conscious most of that time and his suffering in the face of impending death was undoubtedly very intense. The grief and sorrow which has come to these parents through the loss of the love and companionship of their boy is one which, due to their advanced years, they will suffer the rest of their lives. By comparison the award made by the district judge is considerably less than the amount of the award in the case of Boykin v. Plauche, La.App., 169 So. 131, for the death of a son of approximately the same age and in which the demand was made by only one of the parents.

The judgment appealed from having been found to be correct in all respects, the same is hereby affirmed at the costs of the defendants, appellants herein.