author: TALIAFERRO, Justice.

text:
    EFNER v. KETTERINGHAM et ux.
    No. 7306.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1949.
    Rehearing Denied April 29, 1949.

      Booth, Lockard & Jack, of Shreveport, for appellant.
    Whitmeyer & Goetz, of Shreveport, for appellees.
   TALIAFERRO, Justice.

The residence properties of plaintiff and the defendants adjoin and front on Prospect Street in the City of Shreveport, Louisiana, that of plaintiff being west of defendants’. Plaintiff’s property is designated as Municipal No. 811 and defendants’ as No. 805 on Prospect Street, and will be hereinafter so designated.

For several years pi'ior to 1914, plaintiff owned the ground on which -both residences are located. He erected the residence at No. 811, now occupied by him, in the year 1915, and he erected the other residence in the year 1914. Very soon after said residences were completed he built an auto driveway for the service of No. 805 from Prospect Street southerly to a point on. a line with the rear walls of both residences. This driveway consists of two parallel concrete strips about eighteen inches wide. The west strip was laid within a few inches of the piers of the east porch of No. 811 and like distance from the east boundary line thereof. The natural drain of the terrain is from Prospect Street southerly. The difference in elevation between the north and south ends of the driveway is .4 of a foot.

In the scheme for developing and improving the large lot owned by plaintiff at the corner of Line Avenue and Prospect Street, partly occupied by said residences, plaintiff adopted a plan of drainage designed to protect both properties, especially the basements under each, from excessive rainwater. Pursuant to and as an integral part of this plan he built upon the outer edge of each concrete strip of the driveway a concrete curbing about three inches high, and upon or against the curbing next to No. 811, he rested ends of concrete splash pans to conduct into the driveway rainwater from the roof which first entered eave gutters and then downspouts that rested on the splash pans. Ultimately, it was intended to conduct all of this water into Line Avenue, the east boundary of No. 805. This latter part of the drainage set-up effectively protected No. 811 from water that would otherwise have found its way under the house and, in case of extra heavy rains into the large basement used as a storeroom. It likewise protected No. 805 from the spread of water as it coursed down the driveway to its southern terminus.

In 1940 plaintiff and his wife, then occupying No. 805, mortgaged the same to the Home Owners Loan Corporation. This mortgage was foreclosed in 1941 and the property was adjudicated at sheriff’s sale to- the mortgagee, who soon thereafter sold the same to Guy M. Dorman, who, on May 3, 1946, sold it to defendant, John P. Ket-teringham.

No friction between the adjoining owners arose until March, 1947. In that month Mr. Ketteringham complained to plaintiff that the water discharged upon the driveway was overflowing upon and damaging his property, and suggested a plan to alleviate the situation, to which plaintiff, seventy-eight years of age, replied that the drainage system was satisfactory to him. This retort and plaintiff’s attitude toward the matter evidently vexed Mr. Ket-teringham as he at once proceeded to forcibly alter the position of the downspouts so that water coming through them would spill upon plaintiff’s lot. Plaintiff thereafter restored the downspouts to their former position but a few weeks later Mrs. Ketteringham treated them as her husband had formerly done. Again plaintiff restored the downspouts to their former position. Defendants’ son also changed the position of one of the downspouts and some member of the Ketteringham family pushed or shoved old garments into them. This suit soon thereafter was instituted to submit the contest to the courts for solution. Mr. Ket-teringham and his wife were made defendants.

Plaintiff’s suit is predicated upon the theory that defendants’ property, the driveway, is burdened with a servitude of drip and drain in favor of his own, arising from the facts and conditions herein above narrated. He invokes for his protection the law governing possessary actions and prays that the alleged servitude be recognized and that defendants be perpetually enjoined from further disturbing him in the peaceful possession thereof. He couples with his suit a demand for damages, embracing several items, in the aggregate of $1,665, and for attorney’s fee.

Defendants excepted to the petition as not disclosing either a cause or a right of action. These exceptions were overruled and are not presently urged. The answer is, in effect, a general denial of the essential allegations of the petition. However, defendants reconvened. They allege, as is true, that in the mortgage given by plaintiff and wife to the PIOLC, no servitude of any nature was mentioned or reserved by them in favor of their other property, being No. 811, and, for this reason, plaintiff is now estopped by his warranty to assert the existence of the servitude as against the owner of No. 805. Defendants aver that instead of creating a servitude upon their property, the functioning of the downspouts is but a nuisance, and whatever acts done by them with respect thereto, were, in effect, an effort to abate said nuisance. They also allege that the water which pours through the downspouts pools upon the driveway, overflows upon their lot in different directions, a part of which ultimately finds its way under the residence and into the basement where it has done material damage to goods stored and to the water heater therein; that the said overflow water in other alleged respects has done and is doing damage to their property; that plaintiff is simply asserting and attempting to have enforced the alleged servitude in order to escape the expense of establishing a drainage system on his own property to protect it from the damage and inconveniences he is willing to impose upon defendants ; and that he should be ordered by the court to institute such a system.

Defendants itemized elements of damages allegedly sustained by them because of plaintiff’s action in the respects above mentioned, but while the trial was in progress they entered a non-suit to this part of the reconventional demand.

In the alternative, defendants plead that should it be found and held that plaintiff has a servitude upon their property, as by him asserted, in that contingency they allege that the servitude has become more burdensome in that the character of inconvenience and damage now being suffered therefrom did not formerly exist, or if it did exist, then to a much lesser degree than now; that because of the servitude, if it is found to exist, they have been prevented from making advantageous repairs to their estate.

Defendants in their alternative demand, relying upon Article No. 777 of the Civil Code, offer to plaintiff, for the benefit of his estate, a strip of land along the dividing line between the two estates, out to Prospect Street, on and over which the alleged servitude could be exercised, under conditions and limitations to be fixed by the court, and at plaintiff’s expense. The location of the tendered strip, it is alleged, is as convenient to his estate as is the driveway.

Further, in the alternative, should it be found and held that the servitude does in fact exist, and that plaintiff is not legally bound to accept the tender of the strip above referred to, on which to exercise same, in such event they aver that the driveway has fallen into such a state of disrepair it does not serve the purposes of a drainway as it formerly did, to which the damage and inconvenience complained of is traceable; that plaintiff, if he intends to continue exercise of the servitude, should be ordered to restore (by repairs) the driveway to its former- efficient condition, and at his own expense.

Defendants pray in consonance with their reconventional and alternative demands.

The case was tried before Judge Woods, but was decided by Judge Bryan E. Bush, who, for a brief time, served as Judge Woods’ successor.

There was judgment for defendants, plaintiffs in reconvention, permanently enjoining plaintiff from discharging or permitting to be discharged upon defendants’ property the waters that flow from the four downspouts located upon the east side of plaintiff’s residence. After unsuccessful effort for a rehearing, plaintiff appealed to this court.

The testimony in the case covers more than two hundred fifty pages. Its ramifications, to a large extent, go far afield of the essential though simple primary issue in the case, which is: Do the uncontradict-ed facts, with respect to the discharge of water through the downspouts upon the driveway, property of the defendants, confer upon the plaintiff a right of servitude, which defendants-are without right to molest? Of course, if this question is answered in the affirmative, then it becomes necessary to determine if the servitude is a. continuous, apparent one as defined by the. law.

The driveway was primarily built for the use of automobiles of tenants and other persons who lived in No. 805, and has been so used for over thirty years. There is strong reason to support the conclusion that the driveway accomplished all that was expected of it as such and, in addition, has been a means of conducting rainwater away from both buildings. Mr. Dorman, who owned No. 805 from August, 1941, until May 3, 1946, the date he sold it to Mr. Ketteringham, testified that when he purchased the property he observed no signs of damage thereto from water standing on and passing over the driveway, but after the lapse of some two years there occurred a sloughing in the walls of the basement which he attributed too seepage from the driveway. Thereafter, the basement under No. 805 became flooded two or more times.

It is very clear from the testimony and from photographs in tire record that the physical condition of the driveway, in places, from use, has materially deteriorated.

It goes without saying that there are two indispensable prerequisites to the creation of a real or predial servitude, to-wit: two contiguous estates owned by different persons. Article No. 647 of the Civil Code defines this character of servitude as being “a charge laid on an estate for the use and utility of another estate belonging to another owner.”

In a case wherein the owner of two different estates makes application of one to the advantage of the other, it is not, so long as such ownership exists, called a servitude but a disposition- by the owner (Civil Code, Article No. 649), the legal effects of which are clearly set forth in Articles, 767, 768 and 769 of the Civil Code, upon which plaintiff relies for success in this suit. These articles read as follows:

“The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.
“By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to two different owners.” Art. 767.
“Such intention is never presumed till it has been proved that both estates, now divided have belonged to the same owner, and that it was by him that the things have been placed in the situation from which the servitudes result.” Art. 768.
“If the owner of two estates, between which there exists an apparent sign o'f servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist actively or passively in favor of or upon the estate which has been sold.” Art. 769.

This disposition is commonly denominated a “destination du pere de famil-le,” the significance of which is accurately expressed in 26 C.J.S., Destination, page 1245, viz. :

“The use which the owner has intentionally established on a particular part of his property in favor of another part, and which is equal to a title with respect to perpetual and apparent servitudes thereon.”

These quoted articles of the Civil Code, it seems to us, fit the facts of the present case perfectly. Here, we had originally two different pieces of improved real estate owned by one person. He made a disposition for the advantage of both estates, particularly in favor of the one he now owns. Ownership of the two estates has become separate.

It will be observed that it is said in Article No. 769 that although the deed by which ownership of the two estates becomes separated, “be silent respecting the servitude” this fact will not unfavorably affect the operative effect of the destination (servitude) but that “the same shall continue to exist actively or passively in favor of or upon the estate which has been sold.”

And in said Article No. 767 it is said that such a destination “is equivalent to title with resepct to continuous apparent servi-tudes.”

Article No. 728 of the Civil Code defines an apparent servitude as being: “such as are to be perceivable by exterior works; such as a door, a window, an aqueduct.”

It is obvious that the servitude in question is apparent, the same being one of drip or drain. Mr. Ketteringham, as lessee, lived in the residence at 805 Prospect Street for over four years before he purchased it. Undoubtedly he had knowledge of the existence of the servitude. He does not deny such knowledge.

It is equally as certain that the servitude is continuous as distinguished from non-continuous. “Continuous servi-tudes are those whose use is or may be continual without the act of man. Such are aqueducts, drain, view and the like.” Civil Code Article No. 727. See also: Levet v. Lapeyrollerie, 39 La.Ann. 210, 1 So. 672; Kennedy v. Succession of A. & N. McCollam, 34 La.Ann. 568-574; Fuller et al. v. Washington, La.App., 19 So.2d 730; Og-born v. Lower Terrebonne Refining & Manufacturing Company, 129 La. 379, 56 So. 323.

The servitude being apparent and continuous, could be established otherwise than by title, and according to Article 769 of the Civil Code, quoted above, runs with the title to the estate although there be no evidence of it upon the public records.

This principle is so well embedded in the jurisprudence of this state that citation of adjudications announcing the same would appear unnecessary; but, among the many cases on the subject, we do mention the following that appear to be in point, to-wit: Durel, Administrator v. Boisblanc et al., 1 La.Ann. 407; J. A. Rozier v. A. A. Maginnis et al., 12 La.Ann. 108; J. U. Lavillebeuvre v. James Cosgrove, 13 La.Ann. 323; Mary Taylor v. Archibald Boulware, 35 La.Ann. 469.

Article No. 777 of the Civil Code, relied upon by defendants in one of their alternative demands, provides that the owner of the servient estate can do nothing to diminish use of the servitude nor make it more inconvenient, such as changing the condition of the premises or transfer of the exercise of the servitude to a different location. It also provides, however, that if the primitive assignment has become more burdensome to the owner of the servient estate, or if he is thereby prevented'from making advantageous repairs on his estate, he may offer to the owner of the other (dominant) estate a place equally convenient for the exercise of his rights, and the owner of the dominant estate cannot refuse the offer.

This law, we believe, is not controlling in the present case. In the first place, it is not seriously urged nor is it shown that the use of the servitude has become more burdensome to the servient estate, nor has its existence prevented the owner of that estate from making advantageous repairs thereto; and, in addition, for plaintiff to avail himself of the offer would require him to install a line of tile drainage, partly, at least, above the ground, into which the downspouts would have to be introduced, at a cost of not less than $125. We believe, all things considered, that plaintiff is not legally required to accept this offer as a condition precedent to the preservation of the servitude. The locus, in our opinion, is not “a place equally convenient” as required by the said Article No. 777.

The plea of estoppel is without merit. The fact that ownership of the two estates became separate through public sale does not remove the case from the purview of Article No. 769 of the Civil Code. This is expressly held in Durel, Administrator v. Boisblanc et al., supra.

Even though it be conceded, argu-endo, that the HOLC could have successfully interposed the urged estoppel, we believe defendants are not in a position to do so since the servitude was apparent and had existed many years to the knowledge of Mr. Ketteringham, and he, since his acquisition of the property, offered no objection thereto until many months thereafter.

We are satisfied that the driveway can be put in such physical condition that it will serve plaintiff’s purposes and at the same time will not be the means of damage to defendants’ property. The fact that for many years it did efficiently serve in this dual capacity is sufficient proof to support these conclusions. And we are of the opinion that the expense of such reconditioning of the driveway should fall upon the plaintiff. Articles Nos. 772 and 773 of the Civil Code make this certain.

To effectuate the necessary repairs to the driveway plaintiff has the right to go upon it with his workmen and material. Civil Code, Article No. 774.

Plaintiff proved that it would cost $21.00 to have the downspouts restored to their condition prior to being damaged by defendants. He is entitled to recover this amount.

Plaintiff sued to recover $500 as a reasonable fee for the services of his counsel. Attorney’s fee in a case of this character, it has often been held, is an element of damages for which recovery may be had. See: Williams et al. v. Harmanson, 41 La.Ann. 702, 6 So. 604; Vidrine v. Vidrine, 14 La.App. 484, 130 So. 244; De Graauw v. Eleazar, La.App., 24 So.2d 180.

Defendants’ actions forced plaintiff to engage counsel to assert his rights and protect him in the peaceful enjoyment thereof. It was not necessary for defendants to go upon plaintiff’s property to commit the wrongful trespass of which we have found them to be guilty. They were able to do this by simply standing upon the driveway and using sufficient force to injure and dislocate the downspouts. Their actions in the respects herein mentioned were wanton if not malicious. They attempted to take the law into their own hands instead of appealing to it as the plaintiff did. It is shown that Mr. Ketter-ingham, while vexed, stated to plaintiff that he would tear down the downspouts as often as they were restored to normal position. We think a fee of $200 adequate.

Other elements of damages sued for are not insisted upon. They are not supported by adequate proof.

Therefore, for the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of plaintiff, Arthur Efner, and against defendants; J. P. Ket-teringham and his wife, Clare Robinson Ketteringham, decreeing and recognizing a right of servitude of drip and drain over the driveway along the west side of defendants’ lot, described in the pleadings herein-; and defendants are hereby enjoined, restrained and prohibited from disturbing plaintiff’s peaceful possession and use. thereof, all subject to the conditions hereinafter stated:

That within ninety (90) days from finality of this judgment, plaintiff, at his own expense, shall repair and recondition said driveway, within its present limits, in such way and manner so that water from his property, passing over it, will not run beneath defendants’ residence or in any other manner cause damage thereto.

It is further ordered, adjudged and decreed that should plaintiff not within the time stated, comply with the conditions above imposed upon him, his right of servitude herein recognized shall be forfeited and the same shall cease to exist.

It is further ordered, adjudged and decreed that plaintiff do have and recover judgment against the defendants in solido in the sum of'Two Hundred Twenty One ($221) Dollars, with legal interest from judicial demand until paid.

And, finally, it is ordered that defendants pay all costs of this suit.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    SHIRLEY v. TOWN OF WINNFIELD, LOUISIANA, et al.
    No. 7327.
    Court of Appeal of Louisiana. Second Circuit.
    June 6, 1949.

      Cameron C. Minard, Columbia, for appellant.
    Harwell L. Allen, Winnfield, for ap-pellee.
   KENNON, Judge.

Alleging that he was. severely and critically injured through the deliberate, wilful and vicious act of one Jesse R. Roberts, who was then acting within the scope and course of his employment as deputy marshal of the Town of Winnfield, Louisiana, plaintiff filed suit against that municipality for damages totalling $28,450. Also joined as parties defendant were the Mayor and four members of the Board of Aldermen of the Town of Winnfield, Louisiana.

Defendants filed an exception of no cause or right of action on the ground that the Town of Winnfield as a municipal corporation was not liable in tort for the acts of its law enforcement employees and that the Mayor and members of the Board of Aldermen are not individually liable, ex delicto, for acts performed in their official capacity as’ elected members of the governing body of the Town of Winn-' field.

The case is before us on an appeal from a judgment of the District Court sustaining that exception.

The brief of counsel for plaintiff contains the following paragraph:

“Plaintiff appellant does not strenuously urge that the petition sets forth a cause of action against the Town of Winnfield in view of the jurisprudence of Louisiana as set forth in Rush v. Town of Farmerville et al. [156 La. 857], 101 So. 243, and prior cases. It is felt, however, that a good cause of action is set forth against the Mayor and the members of the Board of Aldermen, named individually as defendants in this suit. It is to this proposition that we will devote the argument of this brief.”

The Courts of Louisiana have always held that municipal corporations and other public bodies are not responsible for the tortious acts of public officials in connection with the performance of a duty incident to the exercise of the municipalities’ governmental functions. Hall v. City of Shreveport, 157 La. 589, 102 So. 680; Howard v. City of New Orleans, 159 La. 443, 105 So. 443.

We next consider plaintiff’s contention that under the facts set forth in the petition, the Mayor and Board of Aldermen are personally liable to plaintiff for their alleged negligence in employing Roberts as deputy marshal when they knew that he had committed some ten separate acts of violence against various individuals in using such weapons as a hammer, a pistol, a brickbat and other dangerous.weapons, and when it was within the knowledge of the defendants that said Roberts had been arrested many times in the Town of Winn-field and in nearby places for acts of violence and aggravated assault and had received a suspended sentence after pleading guilty in a neighboring parish to the crime of “Wounding less than mayhem.”

Plaintiff’s counsel urges that each of the individual members of the town council who voted for the employment of such a person in a position which would authorize — and necessitate — the carrying of a-dangerous weapon, committed an act of negligence and that each, in consequence of his participation in the act of employment, became personally responsible to the plaintiff and any other persons who might be injured by the deputy marshal’s ‘ unlawful use of his weapon while so employed.

Plaintiff’s petition alleges, paragraph 12, that “acting in their capacity as the legally constituted governing authority of the Town of Winnfield, Louisiana, the defendants named in the paragraph above did select and employ Jesse R. Roberts in the capacity of Deputy Marshal of the Town of Winnfield, Louisiana and thus empowered him with police duties to maintain order in the Town of Winnfield, Louisiana and legally authorized him to carry fire arms and did vest him with all other rights, privileges and powers appertaining to deputy marshals and police officers in the Town of Winnfield, Louisiana.”

This allegation that the defendants were acting in the scope of their authority brings the case under the general rule as stated in McQuillin’s Municipal Corporations, Second Edition, Volume 2, Paragraph 556, page 280:

“Under a variety of circumstances the general principal has been often asserted that where a public officer is, by law, vested with discretionary ministerial powers, and acts within the scope of his authority, he is not liable in damages for an error in judgment, unless guilty of corruption or wilful violation of the law. * *

In deciding the case of Spalding v. Krei-der et al., 26 La.Ann. 743, the Louisiana Supreme Court followed the above general rule in sustaining an exception of no cause of action filed to a suit against the Mayor and Aldermen of the City of Jefferson for their alleged negligence in appointing certain persons on the police force of that city, giving as their reason for sustaining the exception the fact that “as it was not alleged that they (the defendants) were present aiding and abetting the so called rioters, or that they or either of them inflicted the wound which is the basis of plaintiff’s claim, we agree with the district judge that the petition sets forth no cause of action.”

The decision is short and a reading of it indicates that the Supreme Court took it for granted that it was unnecessary to cite authorities on the point that the Mayor and Board of Aldermen are not individually responsible for the acts of police employed by the municipality. Of course, had the petitioner alleged that the Mayor or members of the Board of Aldermen had incited the riot or had been present aiding or assisting, their responsibility would have been based upon those acts rather than upon their action in employing the policeman or policemen whose action resulted in the injury to plaintiff.

In deciding the case of Thibodaux v. Town of Thibodaux et als., 46 La.Ann. 1528, 16 So. 450, the Supreme Court stated:

“Officials, in the performance of a duty imposed by law, cannot be .held in damages for acts done strictly within the lines of official duty.”

The Court further stated that the presumption is in favor of the propriety and good faith of those responsible for acts of a municipal corporation.

Our constitutional law — that of checks and balances and of division of the sovereign powers into the executive, judicial and legislative branches — all subject to the limitations imposed by the Constitution, is designed to protect the liberty of the individual citizen and to make the processes of government impartial in nature and to provide what has been described as “a government of laws and not of men.” The individuals that exercise governmental functions do so only as authorized by the Constitution, or by statute enacted under power conferred by the Constitution. When a board of aldermen of a municipality, the legislature of a state, or the Congress of the United States is in session, the individuals who are members act strictly in an official capacity and are not personally responsible for the good or ill effect of legislation enacted or of other official actions authorized by the body of which such individuals are members. The remedy against such unwise official acts is found at the polls and not in the Courts.

Parenthetically, it might be observed that were plaintiff’s theory accepted and the members of the Board of Aldermen held responsible for the unwise use of a dangerous weapon by the persons employed by them in their official capacity as members of the Board of Aldermen, there would be no measure or end of the claims that might be made against those who participate in our state and local governmental processes. For -instance, some other plaintiff who was injured by a person who had recently been “no billed” or tried and found not guilty of an alleged crime of violence, might file suit against the members of a grand jury which had failed to indict, or of the jury which had acquitted his assailant of the previous crime, on the theory that had the accused been indicted, convicted and incarcerated, he would not have been at liberty and in position to commit the subsequent act of violence.

Counsel cites the case of Baader v. Driverless Cars, Inc., 10 La.App. 310, 120 So. 515, in which a defendant company which rented automobiles to the public was held liable to the plaintiff, who was injured by the negligence of a person to whom the company rented a car at a time when he was obviously under the influence of intoxicating liquor. This case is distinguishable from the case at bar in that the officer or agent of the defendant company was not acting in a governmental capacity.

The decision of the District Judge sustaining the exception of no cause or right of action is in accordance with Louisiana jurisprudence. Counsel for plaintiff has cited no Louisiana case in which a municipal corporation has been held responsible for the tortious acts of a law enforcement official or in which a public official has been held responsible for acts done in the performance of his official duties.

The judgment is affirmed, with costs.


author: HARDY, Judge.

text:
    POUNCY v. TEMPLE et al. (ROYAL INDEMNITY CO., Intervenor).
    No. 7275.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.
    Rehearing Denied June 6, 1949.

      Irion & Switzer, Harry A. Johnson, Jr., and C. C. Burton, Jr., all of Shreveport, for appellants.
    Blanchard, Goldstein, Walker & O’Quin and Morgan, Báker & Skeels, all of Shreveport, N. M. Ferris, for appellee.
   HARDY, Judge.

Plaintiff brought this suit for $132,776 .damages resulting from personal injuries sustained in a fall from a fire escape. The defendants are A. H. Temple, his insurer, the Fidelity & Casualty Company of New York, and the J. A. Johnson Erection Company. The last named defendant has been eliminated as a party to the suit upon admissions of counsel for plaintiff. The Royal Indemnity Company intervened in the suit, as compensation insurer of Gray-son’s, asserting its right to recovér payments made to the plaintiff, in the event of his recovery in this action. After trial by jury there was a verdict in favor of the defendants and judgment was signed rejecting the demands of both plaintiff and intervenor, which parties have brought this appeal.

Sometime during the summer or fall of 1946, Grayson’s Shops, Inc. (hereinafter referred to as Grayson’s), lessee of a building located at 504 Texas Street in the City of Shreveport, owned by the Katzen-stein family, engaged in an expansion and improvement program which involved certain remodeling work on the building, particularly the preparation for the use and occupancy of the second floor thereof in connection with the retail merchandising business in which Grayson’s was engaged. The superintendent of this construction work, employed -by Grayson’s, was one Fred A. Baggett. During the process of the remodeling work Mr. Baggett was notified by the proper authorities of the City of Shreveport that before a certificate of occupancy could be issued and the second floor opened to use of the public the erection of a fire escape was required. It was determined that this appurtenance should be erected at the rear of the building and should be designed to lead from the second floor to the alleyway.

Baggett contacted several iron and steel construction concerns and finally reached a verbal agreement with the defendant, Temple, who contracted to build the fire escape for a consideration of $275. There is considerable conflict of testimony as to just what additional work Temple agreed to do with respect to the hanging, erection and balancing of the fire escape, with which points we will deal later in this opinion.

Temple’s shop foreman, E. S. Regan, inspected and measured the premises, prepared sketches and superintended the fabrication of the fire escape. The only part of the construction which is concerned in this action is the balance arm, which was a cantilever type affixed by a pin to the axis where it joined the stairway or ladder portion of the fixture. Each of the cantilever arms was fabricated of two pieces of flat iron, three inches in width by one-fourth inch in thickness, welded edge to edge. The arms were joined by pieces of three-inch tubing, twenty inches in length, called spacers. Two diagonal pieces of bar iron on the upper plane of the balance arm were used as braces and at the end of the arm was affixed a 55 gallon oil drum, which was intended to be used as a receptacle for such ballast material as might be employed in balancing the ladder portion of the fire escape in order to hold the said portion at a proper distance above the floor of the alleyway when not in use. For the purpose of receiving the ballast material a hole had been cut in the upper side of the drum about the center thereof.

It is important to note that the term “balancing” is employed in its exact sense. In order to permit the proper use of the fire escape it was necessary that sufficient ballast be introduced into the receptacle provided to counteract the weight of the ladder section to the extent of lifting the same, when unoccupied by a person or persons required to descend in the event of. an emergency. Yet it was also essential that the receptacle be not over ballasted to such degree as would prevent the descent of the ladder section to the floor of the alley at and upon the introduction of a reasonable weight thereupon. In other words, the ballast had to be heavy enough to support the weight of the ladder section yet light enough to permit the lowering of the ladder section when and if its descent became necessary by any person or persons.

After completing the construction of the fire escape it remained at Temple’s shop for some considerable period of time until Baggett requested its installation. In response to this request Temple advised Bag-gett that because of labor trouble he could not hang, that is install, the fire escape. At this particular time the J. A. Johnson Erection Company was doing some work for Grayson’s and it was ascertained that the fire escape could be installed by this concern. Temple notified Baggett that this would necessitate an increase of $25 over and above his contract price of $275, and, after some negotiations between the parties, this additional amount was approved. Thereupon Temple delivered the fire escape to the alleyway in the rear of Grayson’s establishment and it was installed by employees of the Johnson Company.

Some two days after installation Baggett undertook to balance the fire escape, and selected concrete for use as ballast material. With the aid of the plaintiff, Pouncy, concrete was poured into the opening of the ballast receptacle, the 55 gallon drum, to which reference has been made above. This operation was apparently undertaken on or about November 7th. It being believed that sufficient weight had not been provided, more concrete was poured into thé drum on the morning of November 8, 1946, and, after this second operation, Bag-gett decided that too much weight had been added. Accordingly, he instructed the plaintiff, Pouncy, to take a hammer and chisel, clean off the concrete that had spilled on the outside, and begin the removal of some of the concrete that had been poured into the drum. While engaged in this operation, and during Baggett’s absence, the balance arm buckled at a point near the axis and the plaintiff, Pouncy, was violently precipitated to the pavement of the alleyway. Plaintiff sustained serious skull injuries which necessitated the immediate removal of portions of the skull, imbedded fragments thereof and a portion of the front part of the left lobe of the brain. There can be no question as to the serious, painful and permanently disabling character of plaintiff’s injuries, and the fact that he lived at all is a tribute to modern me.dical science and the skill of the surgeon who attended him.'

The above are the material facts involved in the case, none of which are seriously disputed, save and except the extent of Temple’s obligations under his contract and the amount of concrete which was introduced into the ballast drum by Baggett.

Plaintiff predicates his right to recovery upon certain specified charges of negligence on the part of the defendant, Temple, in the fabrication- of the fire escape, namely, the use of weak, inferior material, the insufficient bracing of the balance arm, and the use of an improper ballast receptacle. After interposition of preliminary exceptions overruled by the trial Court, which do not appear to have been insisted upon before this Court, defendants answered, denyr ing negligence on the part of Temple .and asserting, the contributory negligence of the plaintiff.

As above observed plaintiff requested and was granted a trial by jury which found for the defendants. Plaintiff zealously urges that this Court refrain from according any considerable weight to the findings of the jury. It' is our view that the same weight, no more and no less, should be given the findings of a jury on questions of fact as is accorded those of a trial Judge. The findings of fact evidenced by the verdict of a jury should be carefully scrutinized and examined on appeal but should not be disturbed except in instances of manifest error. It is the province and obligation of this Court to carefully examine the facts as well as the law, which duty we have attempted to discharge in this case with painstaking care.

Careful examination of the record, which comprehends almost 500 pages of testimony, indicates that there are four principal factors to be considered in connection with a determination of this case, which may be set forth as being:

1. The material used.

2. The bracing of the balance arm.

3. The placing of a stop arrestor, and,

4. The weight introduced into the ballast receptacle.

Plaintiff charges that the defendant, Temple, was negligent in using flat or bar iron for the construction of the arms of the balance section, and contends that Temple was obligated to use channel iron for this purpose. This claim is supported by testimony to the effect that the fire inspector who first advised Grayson’s as to the requirement of a fire escape, pointed out the fire escape in the rear of the building occupied by the McCrory Company, next door to the Katzenstein building, and stated that the fire escape should be “like that”; that Baggett, according to his own, testimony, advised Temple that the structure should be made of channel iron, to which requirement Temple agreed. This testimony of Baggett is directly contradicted by the testimony of Temple who stated that channel iron was not available at the time (the fall of the year 1946). The scarcity of iron and steel at the time in question is a matter of common knowledge, but additionally it is uncontrovertibly established by the testimony of numerous witnesses, particularly the experts who testified on behalf of plaintiff.

We do not find it necessary to burden this opinion with detailed descriptions of the several designs of iron and steel which are used in the fabrication of structures similar to the one under consideration here. It suffices to observe that the designs of steel and iron in order of preference, because of structural strength and corresponding safety elements, are designated as “I-beam”, “channel”, ’’angle” and “flat”. Unquestionably the best engineering practices indicate the use of I-beam or channel iron. But it is established in this case that channel iron was not readily procurable and it was necessary for Temple to use iron of another design. In connection with this point we think plaintiff has failed to establish an agreement on the part of Temple to use channel iron. The only testimony on this point was that of Bag-gett and of Temple, one of which fully offsets the other, and when we consider the fact that the procurement of channel iron at the time was exceedingly difficult it would seem unreasonable to conclude that a man engaged in, the business of fabricating steel structures would have agreed to use such a design.

There is a further point worthy of note in this connection, namely, that Baggett inspected the fire escape before it was delivered for installation; he was present on the premises during its installation and he proceeded to the work of balancing the structure without a word of objection or complaint, so far as the record discloses, to the use of flat instead of channel iron, although this fact was apparent. If the agreement had required the use of channel iron, certainly Baggett would have objected and would have refused to accept the substituted design. Baggett’s strenuous insistence that he specified and required channel iron is contradicted by the testimony of both Temple and Regan.

At this point we think it proper to comment on the fact that counsel for the respective parties have seen fit in oral argument and briefs to attack the credibility of both Baggett and Temple. Unquestionably there are striking inconsistencies in the testimony of both of these individuals but we choose to regard these variances as being due to faulty recollection rather than any unworthy intent. We think this view was well expressed in the testimony of Mr. Baggett when he stated: “You know it has been two years since it happened and I can’t remember that far back everything that happened.”

It is for this reason that we are inclined to attach more than usual weight and importance to the actions of the parties at the time.

The charges of negligence against the defendant, Temple, are summarized as follows:

(a) Failing to use a known structural member in the stringers of the balance portion of the fire escape;

(b) If known structural members were not available, he was negligent in failing to combine the available metal so as to produce a known structural member;

(c) Failing to use lattice or double lattice type bracing and failing to use adequate spacers, or cross braces;

(d) Failing to submit detailed plans to the State Fire Marshal in accordance with accepted practice among the members of his trade;

(e) Failing to follow the standards of safety established by the City of Shreveport;

(f) Using too large a container for the concrete ballast, and then leaving, without instructions, to inexperienced persons, the putting in of the concrete.

Specifications (d) and (e) may be eliminated for the reason that they are not only ultra petitionem but are entirely irrelevant.

Specifications (a), (b) and (c) may be considered under one head and all will be disposed of by the finding of fact as tc the proximate and efficient cause of the accident.

Plaintiff presented the testimony of a number of expert witnesses in support of the charges of negligence due to structural insufficiency; Mr. C. R. Minor, a graduate ■structural engineer from the University ■of Texas, who has been practicing his profession in Shreveport for some 10 or 12 years; Dr. Frank J. Germano, Associate Professor of Engineering Mechanics, Louisiana State University, whose major field of teaching is “Strength of Materials”; Dr. Roy T. Sessums, Dean of Engineering and Professor of Civil Engineering, Louisiana Polytechnic Institute; and Mr. J. W. Davenport, a broker dealing in steel structures, of long practical experience.

All of the distinguished witnesses above named were agreed on the proposition that the use of the materials and the design employed by Temple in the fabrication of the fire escape were not in accordance with the best engineering practices, and all of them, with the exception of Mr. Davenport, testified that they would not have used such material or design. Additionally there was considerable testimony on the part of these experts as to the margin of safety. Mr. Minor’s testimony was to the effect that this margin should be in the ratio of I1/2 to 2. Dr. Germano said it should be 4 to 1, and Dr. Sessums that it should be 3 to 1. However, in commenting on this factor Mr. Minor appeared to make it clear that the strength' of the materials used could be'considered in arriving at a calculation with respect to this ratio. This factor of strength of materials does not appear to have been so closely discussed in the testimony of Drs. Germano and Sessums, and while -each of these gentlemen testified that the strength should be calculated on a weight bearing basis they did not attempt to testify directly as to the weight bearing strength of the materials actually used.

In answer to the direct question “What would you say caused it to collapse ?” Mr. Minor unhesitatingly answered: “The fact that there was too much load on it”.

Mr. Davenport testified that the use of flat iron in the construction of similar structures was not uncommon and further testified that it was “too much weight” and “not the stringers that failed”. Elaborating on this point he stated: “They fail regardless. of what this is if you put too much back of them; if you overload it”.

The experts were in close agreement as to the calculation of .weights, and, using the minimum figures in round numbers, we think the following facts have been definitely established:

The weight of the stairway section or exit ladder, which was, of course, the main member of the fire escape, designed to be used for passage, is fixed at approximately 770 pounds. The weight of the balance ladder was shown to be approximately 215 pounds plus the weight of the ballast drum of some 25 pounds, giving a total of 240 pounds.

At this point in the computation of weights we are faced with the necessity of reaching a finding as to the amount of the concrete which was actually placed by Baggett in the ballast drum. According to the uniform testimony the weight of concrete is fixed at 20 pounds per gallon. Baggett testified that he first put 20 gallons of concrete in the drum and the following morning added 21/4 gallons. This would give a total weight of 450 pounds. On the very face of the established facts it is evident that Baggett’s testimony on this point is woefully in error because it is obvious that a weight of 450 pounds of concrete plus 240 pounds, the weight of the structure and drum, giving a total of 690 pounds, would not counter balance a weight of 770 pounds. Yet, according to Baggett’s own testimony, he did have too much weight, and it was for this reason that he found it necessary to attempt to lighten the ballast which he had introduced into the drum.

As opposed to Baggett’s testimony on the amount of concrete used, by reason of which he stated that the drum was less than one-half full, we have the testimony of Regan and the welder, Russell, who came to the scene after the accident for the purpose of cutting loose the twisted debris of the balance member, that the drum lacked only about two or three inches of being completely full, and the testimony of an apparently disinterested third party, one Thompson, that he estimated the barrel to be about three-fourths full.

On the basis of this testimony we hold it to be established that the ballast drum contained some 1000 pounds of concrete at the time of the accident. Adding this figure and an additional 150 pounds representing the weight of the plaintiff, Poun-cy, we find that the balance arm was subjected to a total weight of 1390 pounds.

It must be borne in mind that the balance arm was designed for one purpose alone, namely to permit the operation of the suspended step section, the exit way of the escape. As a practical proposition, to fulfill this purpose it was necessary that the design and fabrication be planned for the support of a weight only slightly in excess of the proposed weight of the step section. According to the testimony of the experts this excess weight should have been only some 30 to 40 pounds. And, as logically contended by plaintiff, the additional accommodation of the weight of a workman who might enter upon the balance arm for the purpose of necessary repairs, painting, etc., should have been provided. Computing the necessary weight bearing support of the balance arm in consideration of these factors, we find that it was required to support a maximum weight of 770 pounds, being the weight of the step section, plus 30 pounds, the excess for the purpose of maintaining a balance and permitting operation, plus, say 200 pounds, an arbitrary allowance for the weight of a workman, or a total of 1,000 pounds.

It follows that when Baggett filled the ballast drum with some 1000 pounds of concrete he far exceeded the necessary weight and subjected the structure to an excessive and unreasonable strain. The added weight of plaintiff, Pouncy, was “the straw that broke the camel’s back”.

Under these findings of fact, which evidently accord with the conclusions at which the jury arrived on trial, we are firmly of the opinion that the sole, direct and proximate cause of the accident was due to the negligence of Baggett in overloading the ballast drum.

Even conceding, solely for the purpose of argument, that the design, construction and material used were all inferior, plaintiff has completely failed to establish by a preponderance of the evidence that any of these factors caused or contributed to the failure of the structure. On the contrary it appears clear to us that the weight of the evidence conclusively establishes the proposition that the failure was due entirely to over ballasting.

There is another element which has been injected into the charges of negligence with respect to the placing of the stop arrestor. For the reason immediately above set forth we are of the opinion that the position of this arrestor, with respect to the safety factor, is irrelevant. Nevertheless, our careful consideration of this point leads us to the conclusion that the position of the arrestor was determined by Baggett. It is quite true that the arrestor was placed by one of Temple’s employees, the welder, Russell, but we think plaintiff has failed to establish his contention that the welder selected the point at which the. arrestor was fixed. The only testimony on this item was that of Baggett and Russell, the former asserting that Russell placed the arrestor and the latter as strenuously avowing that it was placed at Baggett’s specific direction. Under this direct conflict it cannot be found that plaintiff’s claim is entitled to greater weight that the denial of defendant’s witness. Additionally, we note the facts that the material for the arrestor was supplied by Baggett and that Temple made an extra charge for the services of the welder in connection with the operation of placing the arrestor, which charge was paid without objection by Grayson’s. Certainly then, this service was not included in Temple’s agreement and the circumstance pointed out is indicative of the fact that the welder was at the time under the direction of Baggett and not Temple.

We now approach the consideration of the only remaining material question, namely, whether the balancing of the. structure was an obligation of the defendant, Temple, under his' agreement. Here again we are confronted with a direct and irreconcilable conflict. Baggett testifies unequivocally that Temple agreed to fabricate, install and balance the structure. Temple testifies equally as positively that his only obligation was to fabricate and deliver the fire escape. Temple’s position is substantiated by the established facts. The installation was made not by Temple but by a third party who was paid by Temple, necessitating an additional charge which was made to and paid by Grayson’s. It is unimportant whether this was done because the original contract did not obligate Temple to install the structure or whether it transpired as the result of intervening labor difficulties which made it impossible for Temple to carry out this obligation, since the incident is entirely distinct and apart from the balancing operation.

Plaintiff is under the compulsion of establishing his claim by a preponderance of the evidence. In this he has failed because the only evidence in support of his contention is the testimony of Baggett which is denied by the testimony of Temple. Again turning to a consideration of established facts it does not seem logical that Baggett would have voluntarily assumed the responsibility of the balancing operation about which he knew absolutely nothing, and that he would have used his time and that of the plaintiff, both being employees of Grayson’s, in carrying out an obligation which was part of Temple’s agreement. The testimony of Baggett himself impresses us with the casual manner in which he undertook to balance the structure. He called Temple, so he testified, discussed the materials available, and determined on the use of concrete because the sand, gravel and cement were at hand. Careful analysis of the testimony of the two witnesses and evaluation of their contemporary actions has firmly convinced us that the balancing was not an obligation of Temple but was an independent operation undertaken by Baggett and for thp result of which he must bear full responsibility.

There is one further point which we have omitted to discuss but which is insisted upon in briefs on behalf of plaintiff, namely, that Temple was negligent in providing a 55 gallon container which was far in excess of the actual need and which negligent action in effect constituted an invitation to over ballast. We point out, in passing, that this argument is thoroughly inconsistent with plaintiff’s contention that the balancing was an operation requiring performance by Temple under his agreement. If, as contended, Temple had obligated himself to balance the structure is must perforce be assumed that he would know what materials and what quantities thereof would be used for ballast and therefore it would be of no moment and of no concern to Grayson’s or its employees whether the receptacle would hold 10 gallons or 100 gallons..

We further point out that plaintiff’s insistence of negligence in this connection is untenable since, according to the un-contradicted testimony in the record, any number of 'materials varying in weight and volume might be used for ballasting purposes.

We are indebted, and we wish here to acknowledge our obligation to diligent counsel for the parties plaintiff and defendant who have exerted every effort to lighten the labors of the Court by filing exhaustive, well prepared and able briefs dealing with every phase of this case.

In our consideration of counsel’s briefs we do not find any substantial differences on propositions of law with respect to the questions here involved. The issues presented have involved almost exclusively questions of fact. We concede the general principles asserted on behalf of plaintiff to the effect that an intervening cause will not serve to relieve from liability where prior negligence was the efficient cause of the injury, nor where the intervening cause is set in operation by an original wrongful act, nor where the intervening cause need reasonably have been anticipated. But, under the facts which we have found in this case, we do not think these principles are applicable.

We know of no law, nor have we been cited to any, which would justify a holding that a manufacturer’s negligence in the fabrication of a product would justify recovery in an instance where the negligence and the resulting defect neither caused nor contributed to the occurrence of an accident. Nor do we perceive that there is anything inherently dangerous in a fire escape. The danger which came into being in the instant case was not the result of any negligence of the defendant Temple, but was created solely and entirely by the negligence of another party who had no connection with the defendant.

It is entirely conceivable that an automobile might be afflicted with a number of defects occasioned by negligence in design, fabrication or assembly of a manufacturer. But in order for a driver to recover for injuries sustained in an accident it would be incumbent upon him to allege and prove that these defects or one of them was the proximate, moving and efficient cause of the accident.

In view of the conclusions reached we find it unnecessary to consider the question of the application of insurance coverage under the contract of insurance between the defendant, Temple, and the defendant, Fidelity & Casualty Company of New York.

For the reasons assigned, the judgment appealed from, rejecting the demands of the plaintiff and the intervenor, is affirmed at appellants’ cost.


author: McCALEB, Justice.

text:
    215 La. 533
    CASSAR et ux. v. MANSFIELD LUMBER CO., Inc. et al.
    No. 38985.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Cawthorn & Golsan, Mansfield, for plaintiffs-appellees-applicants.
    R. C. Gamble, Mansfield, and Cook, Clark & Egan, Shreveport, for defendants-respondents.
   McCALEB, Justice.

Anthony C. Cassar, his wife and his liability insurance carrier joined as plaintiffs to recover damages resulting from an automobile accident occurring in October 1945 on the public highway near Leesville, Louisiana when a Plymouth automobile driven by Cassar collided with a truck of the Mansfield Lumber Co. Inc. as it was in the process of overtaking and passing the truck, which was making a left turn from the highway into a gravelled crossroad. Alleging that the accident was caused by the negligence of the truck driver in attempting a sudden and abrupt left turn into the side road without previous warning, plaintiffs sought recovery of the following damages: Mrs. Cassar $17,500 for her personal injuries; Mr. Cassar $894 for property damage and expenses incurred in the treatment of his wife’s injuries and New York Underwriters Insurance Company $652.83 representing the damage sustained by the Plymouth.

The defendants, Mansfield Lumber Co. Inc. and its insurer, filed a joint answer admitting the accident and that the truck driver was acting in the course and scope of his employment. They denied liability, however, asserting that the truck driver was without fault; that he was proceeding along the highway at a slow rate of speed and that he gave a proper hand signal for the left turn in ample time to assure the safety of approaching vehicles; that the accident was solely attributable to the negligence of Cassar in that he was travelling ac an excessive rate of speed; that he failed to maintain a proper lookout and have his car under control; failed to sound his horn and to observe the signal given by the truck driver. Alternatively, they pleaded the contributory negligence of Cassar in bar of plaintiffs’ recovery.

After a trial in the District Court, there was judgment in favor of Mrs. Cassar for $5,000 and for the other two plaintiffs in the amounts prayed for in the petition. Defendants appealed to the Court of Appeal for the Second Circuit and Mrs. Cas-sar answered asking for an increase in the award in her favor. The Court of Appeal reversed the judgment of the District Court, insofar as Cassar and his insurer were concerned, holding that Cassar was guilty -of contributory negligence, barring recovery. But the court found that his negligence could not be imputed to his wife, as she was a guest without control over the operation of the automobile, and that defendants were responsible for her injuries because the truck driver was not without fault. The court, however, thought the award in favor of Mrs. Cassar was excessive and reduced it to $3,500. See 35 So.2d 797. Plaintiffs thereafter secured writs of certiorari and review and the matter has been submitted for our decision.

Preliminarily, it is well to point out that, since defendants did not apply for and obtain a writ of review, the judgment of the Court of Appeal cannot be changed to plaintiffs’ detriment. Section 11 of Article VII of the Constitution; D. H. Holmes Co. v. Morris, 188 La. 431, 177 So. 417, 114 A.L.R. 905 and cases there cited. Hence, the question respecting the negligence of the truck driver has been foreclosed by the judgment of the Court of Appeal. The only matters for consideration are (1) whether Cassar was guilty of negligence which precluded his and his insurer’s recovery and (2) whether the award for Mrs. Cassar’s injuries is inadequate.

The accident occurred at about 12:00 noon on a clear day upon Highway 171 at a point approximately four miles from Leesville where the highway is intersected from the west by a gravelled road. The highway runs North and South, the paved portion being 18 feet in width abutted by gravelled shoulders. The Lumber Company’s l]/2 ton truck, operated by its colored driver, was proceeding north in the direction of Leesville at a speed of approximately 15 miles per hour. The Plymouth car, driven by Cassar, in which his wife, brother-in-law and a lady friend were passengers, was travelling in the same direction at an admitted speed of at least 35 miles per hour. When the truck arrived near the intersection of the gravelled road, it slowed down to about five miles per hour and proceeded to turn sharply to the left, it being the intention of the driver to make a delivery of material to a house situated on the gravelled road. Just as the left front wheel and fender of the truck preempted the center line of the highway, it came in contact with the right side of the Plymouth which, at that moment, was in the act of overtaking and passing the truck. While the impact stopped the forward motion of the truck, it caused the driver of the Plymouth to lose control and the car sped on for a distance of about 50 feet, capsizing in a ditch abutting the highway.

The testimony of the truck driver is that before he attempted the left turn he looked into his rear view mirror and saw the Cassar car following’him; that, momentarily before the accident, he heard a horn blow but that he nevertheless attempted the turn without looking again into his rear view mirror. The Court of Appeals found that, under these circumstances, he was guilty of violating Paragraph (a) of Rule 10, Section 3 of Act 286 of 1938 (the Highway Regulatory Act) providing that, before turning from a direct line, the driver shall “first see that such movement can be made in safety”.

The Court also resolved that the evidence established that Cassar was operating his car at a speed too high under the prevailing circumstances, that is, the overtaking and passing of another vehicle. After a careful examination of the record, we think that the preponderating evidence clearly sustains this finding of fact. The truck driver stated that Cassar was travel-ling between 45 and 50 miles per hour at the time of the impact and a disinterested witness, Mrs. Christopher James, fixed the speed of the Plymouth as being very fast, about 60 miles per hour. True, the evidence of Cassar and his wife is to the effect that the speed was much slower (30 to 35 miles per hour) but when we consider the physical facts, especially with respect to the course taken by the Plymouth, after impact with the slow moving truck, it seems evident that its velocity was such as to preclude the driver from having it under full control during the passing operation. Then, too, it plainly' appears that Cassar violated the provisions of Rule 7 of Section 3 of Act 286 of 1938, particularly paragraph (e) thereof in that he overtook and attempted to pass the truck at an intersection of the highway.

Indeed, the matter which has given us great concern in the case does not pertain to Cassar’s fault but whether the truck driver detected the approach of the Plymouth at a high speed at a time when he knew that it would be hazardous to make the left turn. In other words, if he discovered Cassar’s peril and had a last clear chance to avert the accident, by refraining from turning left into the path of the passing automobile, defendants would be liable notwithstanding Cassar’s negligence — for it is well established by the doctrine announced in Rottman v. Beverly, 183 La. 947, 165 So. 153 that contributory negligence is not always a bar to recovery even though plaintiff’s negligence continues to the moment of the accident, and that, where the defendant discovers plaintiff’s peril at a time when he has the means within his control to avoid a mishap and fails to do so, his negligence will be regarded as the proximate, immediate and efficient cause of the injury and plaintiff’s negligence the remote cause.

The truck driver testified, under cross-examination, that, prior to the time he started the turn, he glanced into his rear view mirror and saw the automobile approaching about 120 feet to the rear; that, just as he was about to turn, he heard a1 horn blow; that he did not look again; that he started his turn and that, when his left front wheel went over the center line, the impact occurred. He also stated that the automobile was going 45 or 50 miles per hour at the time of the collision.

Counsel for plaintiffs argue, with much plausibility, that, since the truck driver admits that the automobile was only 120 feet behind the truck at the time he last saw it and since he concedes that he heard its horn blow momentarily before the left turn was attempted, he had discovered the fact not only that the Plymouth was attempting to overtake and pass the truck but that it was in such a perilous position at that time that its driver could not extricate himself in the event the truck attempted the left turn across the center line of the road.

We think that this argument is well founded for it is difficult to conceive that the truck driver was unaware, when he noticed the fast moving Plymouth 120 feet to the rear of him, that the automobile was overtaking and was about to pass him. If he had any doubt about it at that time, he became fully cognizant of the passing operation prior to his attempted left turn because he admits that he heard the horn signal of the Plymouth before he started the turn. Thus, he was and should have been fully apprised of the fact that an accident was inevitable if he crossed the center line of the highway and he had a last clear chance to avoid it by restraining his impulse. His failure to do so renders the defendants liable.

In due deference to the Court of Appeal, it is apt to observe that the applicability of the doctrine of discovered peril apparently was not stressed on the hearing before it as it is not considered or even mentioned in the opinion. And the matter has not been briefed by counsel for defendants in this Court. Be this as it may, counsel for plaintiffs not only invoked the doctrine in their application for writs, in argument and brief before this court and in their application for rehearing in the Court of Appeal but they state that the question was argued orally both in the District Court and before the Court of Appeal.

Since we find defendants responsible, it remains only to consider the damages. The amount sued for by Cassar’s insurer, representing the damage sustained by the Plymouth automobile amounting to $652.83 is not disputed. Defendants contend that the amount of $894 claimed by Cassar, representing the value of personal effects destroyed or damaged in the accident and the medical expenses of Mrs. Cassar, have not been proved with legal certainty and that the values placed on some of the items claimed are speculative. However, the district judge was satisfied with the proof submitted by plaintiffs and we are not disposed to disturb his ruling on this question.

With regard to the personal injuries of Mrs. Cassar, the record discloses that she sustained ordinary contusions and bruises and a blow to her left thigh which caused a large blood clot. In addition, she claims that she suffers from traumatic neurosis as the result of the accident. The Court of Appeal felt that a judgment of $3,500 in her favor was proper and we think that it is ample.

The judgment of'the Court of Appeal is, therefore, affirmed insofar as plaintiff, Mrs. Helen Cassar, is concerned; but, in all other respects, its judgment is annulled and set aside and it is now ordered that the judgment of the District Court in favor of Anthony C. Cassar and New York Underwriters Insurance Company, Inc. be reinstated and affirmed. Defendants are to pay all costs.

       The angle from the highway into the road is more than 90 degrees.

       In this respect, the case is distinguishable from Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165, where the Court refused to consider the doctrine of last clear chance because it had not been invoked by pleading, testimony or argument,


text:
    215 La. 545
    HOLLABAUGH-SEALE FUNERAL HOME, Inc. v. STANDARD ACC. INS. CO. et al.
    No. 38878.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.

      Jess Johnson, Baton Rouge, for plaintiff-respondent.
    Watson, Blanche, Fridge, Wilson & Pos-ner by John R. Fridge, Baton Rouge, for applicants.
   McCALEB, Justice.

On August 31, 1944, a Buiek ambulance owned by plaintiff and operated by its employee, Lonnie R. Scott, was damaged when it collided with a small Dodge pickup truck, owned by Frank De Frances and driven by his wife, on Government Street at its intersection with Oakwood Drive in the city of Baton Rouge. Alleging that the accident was caused by the negligence of Mrs. De Frances in attempting a left turn from Government Street into Oakwood Drive without previous warning at a time when the ambulance was about to pass the truck, plaintiff brought suit against De Frances, his wife and their liability insurance carrier to recover $474.09, representing the damage sustained by the ambulance.

The defendants denied that Mrs. De Frances was at fault and asserted that the accident was attributable to the imprudence of the ambulance driver in travelling at an unlawful and dangerous rate of speed; in failing to sound his horn or siren as a signal of his approach and in attempting to overtake and pass the Ford truck at the intersection in violation of the Highway Regulatory Law, Act 286 of 1938. Alternatively, they pleaded the contributory negligence of the ambulance driver in the particulars above set forth.

After a hearing in the District Court, plaintiff’s suit was dismissed, the judge being of the opinion that the ambulance driver was guilty of contributory negligence. Plaintiff then appealed to the Court of Appeal for the First Circuit, where the ruling was reversed and judgment was rendered in plaintiff’s favor as prayed for. Certiorari has been granted and the matter is submitted for our decision.

The accident occurred at about 11:30 p. m. on a clear summer night. Government Street is a paved thoroughfare running east and west in the city of Baton Rouge, being intersected from the north by Oak-wood Drive, which has two roadways separated by a neutral ground. Both vehicles were travelling east on Government Street and the collision took place as Mrs. De Frances was starting a left turn into the east roadway of Oakwood Drive from the south side of Government Street at a time when the ambulance was overtaking and attempting to pass her truck at considerable speed. The evidence shows that Mrs. De Frances had not actually reached the east roadway of Oakwod Drive as she began her turn, rather, she was edging over to the north or left side of Government Street and preparing to negotiate the turn when the left side of her truck was struck by the front of the ambulance approximately at tiie neutral ground of Oakwood Drive. The impact of the ambulance against the truck was so great that the front end of the truck was shunted back into the southern portion of Government Street and the ambulance continued on across the east roadway of Oakwood Drive where it mounted the curbing at the northeast corner of the intersection and knocked down a fire hydrant.

Mrs. De Fances was alone in the truck at the time of the accident and was returning home from an errand for her husband. The amlbulance driver was accompanied by his fiance (presently his wife) and another employee (who could not be located to give evidence at the trial).

The ambulance driver’s testimony is that he was travelling at a speed of 40 miles per hour; that he first noticed the truck ahead of him when he was about SO yards to its rear; that it was proceeding at a very slow speed; that, when he arrived within passing range (25 yards from the truck), he crossed over to the left side of the street and blew his horn; that, when he reached the intersection of Oakwood Drive and was about to overtake the truck — that is, when the front end of the ambulance had progressed to' a point approximately even with the rear end of the truck — the driver of the truck, without holding out her arm but merely giving a hand signal, suddenly swerved to the left forcing him to pull the ambulance over on or near the neutral ground and that, as the truck continued to turn, he was unable to avoid impact with its left side.

The evidence of the wife of the ambulance driver is vague and obscure in many particulars, so much so as to make it ap-, parent that her attention was distracted from the circumstances surrounding the. accident. She does not know how fast the ambulance was travelling nor is she able to testify as to any of the approximate distances between the ambulance and the truck on the approach to the intersection. While she attempts to corroborate her husband as. well as she can, her evidence is of little value in determining the negligence of the principals to the collision.

Mrs. De Frances states that she was travelling at 15 or 20 miles per hour; that, as she approached Oakwood Drive, she retarded her speed and gave a hand signal; that she looked into her rear view mirror and saw the lights of an approaching automobile (undoubtedly, she believed that it was not in such close proximity that it would impede her in making the left turn into Oakwood Drive); that, upon reaching the neutral ground of Oakwood Drive, she turned to the left and that, simultaneously, the truck was struck by the ambulance which had entered the intersection at a rapid rate of speed.

The Court of Appeal was of the opinion that Mrs. De Frances was negligent in edging over to the left side of the street before she reached the east roadway of Oakwood Drive and it was also of the view that she did not exercise the care and caution required of a driver in executing a left hand turn. We do not deem it necessary to consider whether this conclusion of the Court is supported by the preponderating evidence —for, conceding that Mrs. De Frances was at fault, it is patent to us that the ambulance driver was guilty of contributory negligence which effectively bars plaintiff’s recovery.

Primarily, it seems evident from the circumstances and conditions surrounding the accident that, if the ambulance driver had exercised the caution and lookout expected of a prudent driver, he would have observed that the slowly driven Dodge truck was preparing to execute a left turn and would have refrained from attempting to pass it at the intersection in direct violation of paragraph (e) of Rule 7, Section 3 of Act 286 of 1938, Dart’s Statutes Section 5212, providing: “The driver of a vehicle shall not, under any circumstances, overtake or pass another vehicle proceeding in the same direction at any steam, electric or other railroad grade crossing or any intersection ■of the highway, unless permitted or instructed to do so by a duly authorized traffic or police officer.”

The ambulance driver admits that he was travelling at 40 miles per hour, which speed he did not diminish in any appreciable extent from the time he first saw the truck until he attempted to pass it. Such a rate of speed of travel was hazardous under the circumstances obtaining in this case, that is, where the driver was attempting to overtake and pass a slower moving vehicle at an intersection.

It is the rule, as stated by the Court of Appeal, that the violation of a traffic regulation will not be regarded as actionable negligence if it is without causal connection to the accident. But, here, we entertain no doubt that the overtaking and attempted passing of the truck at the intersection by the ambulance driver was, a least, a factor which contributed to the accident- — albeit, it may have been the proximate and predominating cause — the “causa causans”.

Finally, counsel for plaintiff invokes the doctrine of last clear chance. Strictly speaking, last clear chance is inapplicable as the negligence of the ambulance driver continued to the moment of the accident. The kindred doctrine of discovered peril announced by this Court in Rottman v. Beverly, 183 La. 947, 165 So. 153 and applied in Cassar et al. v. Mansfield Lumber Company, Inc., 315 La. 533, 41 So.2d 209, is not appropriate to this case because there is nothing in the testimony of Mrs. De Frances to show that, prior to the time she negotiated the left turn, she was aware of the speed of the ambulance, its close proximity and its attempt to overtake and pass her truck.

The judgment of the Court of Appeal is reversed and plaintiff’s suit is dismissed at his cost.

HAMITER, J., concurs in the decree.

O’NIELL, C. J., takes no part.

       See 32 So.2d 616.


author: HAWTHORNE, Justice.

text:
    215 La. 553
    STATE v. GALJOUR.
    No. 39358.
    Supreme Court of Louisiana.
    May 31, 1949.
    J. J. Jackson, New Orleans, for relator.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Racivitch, Dist. Atty., Alexander E. Ral-ston, Jr., and Geo. McCulloch, Asst. Dist. Attys., and David MacHauer, New Orleans, for respondent.
   HAWTHORNE, Justice.

On September 22, 1947, an assistant district attorney for the Parish of Orleans filed a bill of information in the juvenile court of that parish, charging relator, Edgar Galjour (an adult), with desertion and intentional non-support of his two minor children, Wayne and Edgar Galjour, aged four and three years, respectively, who were in destitute circumstances. To this charge the defendant entered a plea of not guilty, but after trial, which was held on October 20, 1947, he was adjudged by the juvenile judge to be guilty and ordered to pay $20 semi-monthly for the support of his two children, and, according to the return of the trial judge, was released on his own recognizance as he was unable to furnish bond for these payments.

Approximately a year and four months later, a rule was filed in these proceedings to increase the semi-monthly payments of $20. In answer to this rule the defendant appeared and filed an exception to the jurisdiction of the juvenile court, which was overruled. Upon his informing the juvenile court of his intention to apply for writs, that court continued indefinitely the rule to increase these payments. He then applied to this court for a writ of prohibition, and this court issued a stay order pending a review of the proceedings.

On October 24, 1946, relator herein and his wife, Mrs. Velma Mae Lozier Galjour, were divorced by judgment of the Civil District Court for the Parish of Orleans, and this judgment awarded the custody of the two children, Wayne and Edgar, to the wife and reserved her right to claim alimony for these children.

On April 11, 1947, five months prior to the filing of the bill of information against relator herein in the juvenile court, the civil district court, on a rule to fix the alimony filed in the divorce proceedings, ordered relator herein to pay to his divorced wife $40 per month, payable semi-monthly, for the support of his two minor children.

In support of his plea to the jurisdiction of the juvenile court, relator filed the judgment of the district court fixing and ordering him to pay alimony to his wife for the support of his two minor children, and in brief filed in this court contends that under the facts as thus presented there is only one question to be considered, that is: Which of the two courts, the civil-district court or the juvenile court, has jurisdiction to the exclusion of the other?' Is the jurisdiction in the civil district court, which took jurisdiction in the divorce proceedings in which alimony was awarded on April 11, 1947, to the wife for the support of the two minor children, or is the jurisdiction in the juvenile court in which the relator herein was charged with desertion and intentional non-support of •these children on September 22, 1947?

Relator takes the position that the jurisdiction is in the Civil District Court for the Parish of Orleans, and in support thereof relies on the well established principle of law that, where two courts have concurrent jurisdiction over the same subject matter, the court first obtaining jurisdiction and possession of the res retains it to the end of the controversy, to the exclusion of the other.

Article 74 of the Criminal Code, Act No. 43 of 1942, which defines and denounces the offense under which relator was charged and convicted in the juvenile court, provides as a penalty that anyone who shall be found guilty of such, offense shall be fined not more then $500 or imprisoned for not more than one year, or both, etc. Article 75 of the Criminal Code provides that the court, in its discretion, after a conviction of such an offense, instead of imposing the punishment as above provided, or in addition thereto, has the power to issue an order directing the defendant to pay a certain sum weekly, or at such periods as the court may direct, to the wife or to the tutor or custodian of the minor children, or to an organization or individual approved by the court as fiduciary for such children; that this sum nmy be increased or decreased by the court from time to time as the circumstances may reqmre, and that the court has the authority to require the defendant to enter into a recognizance with or without surety, as the court shall direct or order, to insure the payment of the alimony.

Article 7, Section 96, of the Louisiana Constitution of 1921 provides for a juvenile court for the Parish of Orleans, which court “shall have jurisdiction * * * of all persons charged with contributing to the neglect or delinquency of children under seventeen years of age, or with the violation of any law now in existence or hereafter enacted for the protection of the physical, moral or mental well-being of children not punishable by death or hard labor. Said court shall also have jurisdiction of all cases of desertion or nonsupport of children by either parent * * (Italics ours.)

Section S of Act No. 169 of 1944 provides that the Juvenile Court for the Parish of Orleans shall have exclusive original jurisdiction in any proceeding concerning any child residing in or found in the Parish of Orleans who is delinquent or neglected, and, further, that “The Court shall also have jurisdiction in all cases of desertion or non-support of children by either or both parents * * Section IS of this act provides that, in the case of an adult found guilty of desertion, non-suppor-t, or failure to provide subsistence or care for any child for whose maintenance or care such adult is legally responsible, the court may inquire into and determine the ability of such adult to provide for the maintenance or care of such child and shall determine the amount to be paid and shall direct when and how and where money for such maintenance or care shall be paid.

Under the provisions of the Constitution and the laws of this state set out above, there can be no doubt whatsoever that the Juvenile Court for the Parish of 'Orleans had jurisdiction of the offense ■charged against relator, and, after he was adjudged guilty, had full authority to order the semi-monthly payments of $20.00 ■each for the care, support, and maintenance of the two minor children, and, further, had jurisdiction of the proceeding brought to increase the award of the semi-monthly payments previously ordered. Moreover, the offense with which relator was charged is denounced and made a crime by the Criminal Code of this state,, and, since relator was an adult charged in the juvenile court, the prosecution was instituted and conducted in the name of the State of Louisiana, as was proper under Section 14 of Act No. 169 of 1944. Since relator was charged with a crime, he was entitled under the Constitution of this state, among other things, to a speedy trial, to the right to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and could not be compelled to give evidence against himself.

The divorce proceedings, in which a judgment of the civil district court was rendered fixing the alimony and ordering defendant therein to pay to his divorced wife $40 per month for the support of his two minor children, were clearly civil in their nature, and the order of court awarding such alimony was merely an incidental or ancillary proceeding flowing from the divorce action and was based purely on his civil obligation to support his children (Art. 227, La.Civ.Code); while the proceedings in the juvenile court were criminal in their nature, based on the failure or past omissions of the father to fulfill the obligation to support his children. In the civil district court the matter was between the husband and the wife, whereas in the juvenile court the State was prosecuting the father for an offense defined in the Criminal Code, and, in lieu of the imposition of fine or imprisonment as provided in Article 74 of that Code for one found guilty of non-support or desertion of his minor children in necessitous circumstances, the juvenile court in its discretion ordered the defendant to make payment for their care and support, under the provisions of Article 75 of the Criminal Code.

In the civil district court a defendant does not have all of the constitutional safeguards and rights afforded to an adult defendant in a criminal prosecution in the juvenile court. In the civil district court the matter is entirely civil in its nature, and in the juvenile court the matter is entirely criminal, and, this being true, there is no question of concurrent jurisdiction here involved. Certainly the relator could not be tried in the civil district court for the criminal offense of desertion and nonsupport of his children. Likewise, the juvenile court had no jurisdiction in the divorce proceedings in which alimony was awarded as incidental or ancillary thereto.

To sustain relator’s contention would, in effect, suspend the articles of the Criminal Code denouncing as a crime the neglect of, and failure to support, one’s children, as to a father who lias been ordered to pay alimony for their support in a divorce proceeding.

In Brana v. Brana, 139 La. 305, 71 So. 519, 520, Mrs. Brana charged her husband on September 14, 1915, before the juvenile court of Orleans Parish with having failed to provide for the support of their minor child, and that court entered an order that he pay her $3 weekly for that purpose. On the same day the husband instituted suit for separation from bed and board in the Civil District Court for the Parish of Orleans. Two days thereafter, on September 16, the probation officer of the Juvenile Court for the Parish of Orleans made an affidavit before that court setting forth, among other things, that the child was a neglected child, and the juvenile court entered an order of date September 27 temporarily placing the child in the custody of the mother. On September 17 the husband took a rule on his wife in the civil district court as an incident to the separation suit, to show cause why the custody of the child should not be given to him. Upon trial of the rule, the custody of the child was given to the mother. Thereafter, on February 15, 1916, the husband took another rule on his wife in the civil district court to show cause why the previous order awarding her custody of the child should not be set aside and the custody given .to him. In her return to this rule thei wife alleged that her custody of the child was by virtue of the judgment of the juvenile court dated September 27, 1915, and that, since the two courts (civil district court and juvenile court) had concurrent jurisdiction and the juvenile court had.been first seized of the child, the judge of the civil district court was without authority to proceed further in the matter.. After a hearing, the judge of the civil district court held that it was his court which had been first seized of the child by virtue of his order of September 21, 1915, and that the juvenile court had no jurisdiction over the child since the child 'was not a neglected child. He then revoked the previous order in which he had given the custody of the child to the mother, and gave the custody to the father. The wife then applied to this court for writs of certiorari and prohibition to review the action of the respondent judge. This court issued a writ of prohibition as prayed for by relatrix, and in the course of its opinion said:

“Equally untenable is the other ground of the decision of the learned respondent judge — that his court was first seized of the child. In the first place, the order made by the juvenile court, on September 16th, placing the child in the custody of the mother, preceded by five days that made by the respondent judge on September 21st, placing the child in the custody of the mother. In the second place, the question cannot be made to depend upon precedence. The two courts have not concurrent jurisdiction. This has already been pointed out in the case of State v. McCloskey, 136 La. 739, 67 So. 813. The one jurisdiction is civil; it acts as between the parents. The other is quasi criminal; it acts as between the state and the parents, or as between the state and the child. After the respondent judge’s court has awarded the child to the one parent, as being the one most worthy, or least unworthy, of the charge, there is nothing to prevent the juvenile court from finding that the child is being neglected, and therefore should be taken away from both parents, or from the parent who is neglecting it. And such a course would in no wise interfere with the jurisdiction of the court having civil jurisdiction as between the two parents. In such a case, the action of the juvenile court would be based strictly on the ground of the child being neglected, and not, like that of the respondent judge’ upon an issue between the two parents.”

The Brana case was decided while thé Constitution of 1913 was in effect,- and in that Constitution the provisions for jurisdiction of the juvenile court in cases of neglected or--delinquent children and cases •dealing with desertion and non-support of children by either parent are similar to the provisions found in the Constitution of 1921, The 1913 Constitution provided that the juvenile courts of the state, including that of the Parish of Orleans, “ * * * shall have jurisdiction * * * of the trial of all children under seventeen years of age who may be charged in said courts as neglected or delinquent children * * *. Said Court shall also have jurisdiction of all cases of desertion or non-support of children by either parent. * * * ” Art. 118, sec. 3, La.Const. of 1913. It is true that in the Brana case the charge in the juvenile court was that of being a neglected child, while in the instant case the charge in the juvenile court is that of intentional desertion and intentional non-support of two children by their father. But, since in each instance the constitutional provisions with reference to- jurisdiction are similar, as stated hereinabove, what was said in that case, quoted above, is applicable to this case.,

The following statement made in the case of In Re Owen et al., 170 La. 255, 127 So. 619, 622, is very pertinent here:

“The line of demarcation between the courts exercising general civil jurisdiction with respect to the care, custody, and control of minors and the juvenile courts is well defined. These courts, in dealing with the welfare and interest of minors under a given age, are entirely independent of each other. Where the contest is between the parents, or between a parent and a third person, as to who should have the control and care of the minor, the court exercising general civil jurisdiction is the proper and exclusive tribunal to decide the issue.
“But, where a child is neglected or delinquent, and where the parent contributes to, or is responsible for, such neglect or delinquency, then the state has the paramount right in the interest of the welfare of the child to" say who shall have the care, custody, and control of the child, and the juvenile court has been made the special and exclusive tribunal for determining .such issue.
“There is no force in the contention that this is not a proceeding by the state. It is true that the proceeding was initiated by the affidavit of individuals, but the charge as stated is quasi criminal, and it was made on behalf and in the interest of the state in the proper exercise of its paramount right to determine the best interest and welfare of the children in the manner provided by law.”

In State v. McCloskey, 136 La. 739, 67 So. 813, 814, an affidavit was filed by the wife in the juvenile court, charging a child, born of her marriage to George T. McCloskey, with being a neglected or abandoned child. The husband took the position that the juvenile court did not have jurisdiction on several grounds, one being that there was pending in the civil district court a suit for separation from bed and board between him and his wife, and that the right to award the custody of the child belonged to the civil district court as an incident to the suit for separation from bed and board. In holding that this contention had no merit, this court said:

“The juvenile, court and the court in which a suit in separation from bed and board is pending between the parents of a child may have simultaneous, though not concurrent, or conflicting, jurisdiction of the custody of the child; that of the juvenile court to be exercised as between the state, or, so to speak, the child, and the parents of the child; and that of the other court to be exercised as between the two parents. * * * ”

It is true that in each of the cases cited hereinabove the child was charged in the juvenile court as being a neglected child, but each of these cases is authority for the proposition that there was no concurrent jurisdiction with the civil district court in which a proceeding for divorce or care or custody of the child had been filed or was pending. Likewise, in the instant case there is no concurrent jurisdiction as between the juvenile court in a criminal charge against an adult of nonsupport of his minor children and the civil district court in a proceeding for divorce or separation from bed and board in which a judgment awarding alimony is incidental thereto.

The fact that the relator had been ordered to pay alimony in the civil district court properly relates to the merits rather than to the question of jurisdiction, for in our opinion a showing by a defendant in the juvenile court that he was complying with such a judgment o-f the civil district court would be a matter of defense to a charge of non-support rather than a matter in support of an exception to the jurisdiction.

For the reasons assigned, the judgment of the Juvenile Court for the Parish of Orleans overruling the exception to the jurisdiction is affirmed.

O’NIELL, C. J., does not take part.