text:
    ALFORD v. LOUISIANA & ARKANSAS RY. CO. et al.
    No. 7283.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.

      White, Holloman & White, of Alexandria, for appellant.
    Julius T. Long, of Shreveport, and Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   HARDY, Judge.

Plaintiff instituted this suit for damages against the defendant railway company as the result of -the death of her husband, Clarence Alford. Plaintiff sues individually and as -the duly qualified natural tutrix of the -three minor children born of her marriage with decedent. To these proceedings intervened the Solvay Process Company, in whose employ the decedent was engaged at the time of his death, seeking to recover compensation paid and to be .-paid by -reason of its liability under the Workmen’s Compensation Statute. Act No. 20 of 1914, as amended. Plaintiff originally joined as a party defendant one Rufus G. Coleman, engineer of the defendant railway, who was operating the locomotive of defendant involved in the fatal -accident, but dismissed her action against the said Coleman as of nonsuit -prior to judgment. After trial there was judgment in favor of plaintiff individually and against -the defendant in the sum of $10,000.00, and in favor of plaintiff as natural tutrix for the three named minors against the defendant in the sum of $5,000.00 for 'each of said minors. There was further judgment in favor of -the intervenor against both plaintiff and defendant -to the extent of the amount of weekly compensation paid by intervenor by reason of the death of plaintiff’s husband, to date of final judgment, together with the sum of $750.00 as attorney’s fees, with -the ‘ provision that the sum of $300.00 of said total amount allowed as attorney’s fees be charged against plaintiff, and -the -sum of $150.00 thereof be charged against each of said minors. The judgment also provided that the railway company pay intervenor by -preference and priority out of the amounts awarded plaintiff.

From the judgment defendant has appealed. Plaintiff has answered the appeal, praying for an increase in the amount of the judgment to the widow to -the sum of $12,000.00, and an increase in the amounts awarded each of the minors to $7,000.00. Intervenor has also answered -the appeal, praying for an increase in the amount allowed as attorney’s fees to -the sum of $1,000.00, and further praying for the allowance of $150.00 expended for burial charges, and the sum of $15.00 representing ambulance -charges, for the allowance of both of which items it originally contended.

The death of Clarence Alford resulted from a collision between a train of 12 cars loaded with stone, crushed rock and stone ■screenings, drawn by a 50-ton locomotive of the Solvay Company, operated at the time by the said Alford, and a train of 21 empty freight cars which was at the time being pulled by a 75-ton locomotive of -the defendant, operated by its engineer, Rufus G. Coleman. At the time of the accident the Solvay Company train was en route from the stone quarry of said company to defendant’s switch yards at Carla, while defendant’s train was engaged in switching operations.

If is desirable -in the interest of clarity to set forth in some detail the locus a quo, which may be generally designated for the purpose of description, as what is known as the Winnfield Yards of the defendant railway company. These yards extend in a northerly direction along the main line track for a •distance of some 3 miles out of the town of Winnfield, Louisiana, and include what is called the Carla yards, which consist of the main line and two switch tracks designated as the middle “rail” and the back track. Also included in the yard set-up is the single tract which leads from what may be called the west switch of the Carla yards for a distance of 2.57 miles to the stone quarry of the Solvay Company.

The Solvay track, beginning immediately ■past the Carla yards, makes a four degree curve to the right in the direction of the Solvay quarry. This curve of some 600 feet in length passes through a cut, and the right-of-way on each side is grown up with underbrush and some timber, all of which contributes to the obstruction of view of the track in the curve. Testimony as to the distance which permitted a clear view is so hopelessly conflicting that we are unable to reach any accurate conclusion as between the brackets of 225 and 430 feet, which are the distances urged by plaintiff and defendant ' respectively. However, we are convinced that the obstruction to the view was of such degree as to render the negotiation of this curve a dangerous operation, necessitating the exercise of the utmost caution.

At about the hour of 1:15 P. M. on September 17, 1945, at a point some 400 feet more or less from the west switch of the Carla yards, there was a collision between the two trains above described. At the time defendant’s train was being pulled by the locomotive operated by Coleman, which was backing in the direction from which the Solvay train was proceeding. The facts ■conclusively show that the decedent, Alford, was operating the locomotive of the Solvay train in the cut of the curve with throttle closed, at a speed of not more than four to six miles per hour when -he first perceived evidence of defendant’s approaching -train in the smoke of the locomotive which was rising above the obstruction to the view. It is established that Alford immediately applied his brakes and^sounded two short blasts of the locomotive whistle, followed by one long blast. It is further established that during the switching operation the engineer of defendant’s train was backing at a very slow rate of speed, but, unquestionably, both he and his fireman, who were occupying their respective positions in the cab of the locomotive, were directing their attention principally forward, that is, toward the 2l empties which they were pulling. The first warning of the approach of the Solvay train appears to have been the sound of the last blast of its whistle, which was heard by the fireman of defendant’s crew, who immediately called a warning to the engineer. The warning was promptly heeded, the brakes were applied and the throttle thrown into reverse, but these last moment efforts were unavailing.

In the ensuing collision the tender of defendant’s locomotive was driven over the Solvay locomotive and both were derailed against the wall of the cut. Alford, engineer of the Solvay locomotive, was buried beneath the debris. The body was removed some hour or so later and death must have been instantaneous.

Plaintiff bases her claims to recovery upon the alleged negligence of defendant’s agents and employees. Defendant denies the numerous charges of negligence, specifically and generally, and, on its part, alleges in numerous counts the negligence of decedent Alford as a bar to plaintiff’s recovery.

We deepi it unnecessary to burden this opinion with a detailed discussion of the multitude of charges and counter charges of negligence, many of which are exceedingly far-fetched, and, accordingly, prefer to confine our discussion in this opinion solely to those facts which are pertinent and material to a determination hereof.

Under date of December 7, 1938, the superintendent of Solvay Process Company, intervenor herein, issued a memorandum to his operating foreman, copies of which appear to have been directed to such officials and employees of both intervenor and defendant as was proper in view of the subject matter. Inasmuch as the matters comprehended in this memorandum have been heavily emphasized by astute counsel for all the parties litigant, we set forth the body of the instrument in full as follows:

“In anticipation of the joint use of the L&A track between our plant and Carla by both our locomotive and the L&A locomotives the following instructions are being issued to become effective at once.
“It has been agreed between the L&A operating organization and this office that there shall be no movement made over the above mentioned track without there first being a telephone contact between the men in immediate charge of both crews. The Solvay Weighmaster is hereby instructed that he must call the L&A yard office and obtain clearance before proceeding from this plant to Carla. It is understood that the L&A Yardmaster will be instructed to call the Solvay Weighmaster and obtain clearance before proceeding from Carla to our plant.
“It shall be the duty of the Solvay Switchboard Operator to make a permanent record of such telephone contacts between the L&A and Solvay crews, showing the date, time and persons making the contact.
“We anticipate that there might be occasion for the L&A to obtain a clearance from Solvay at sometime other than the hours when the switchboard is in operation, namely, 8 A.M. to 4 P.M. week days and 8 A.M. to 12 Noon Saturdays. In anticipation of the possibility of the L&A desiring to use the track on Saturday afternoon or Sunday, the Solvay Weighmaster is hereby instructed to give the L&A yard office clearance at the time our locomotive is put on the spot for the week end and also each day when it is put on the spot for the night.
“The Solvay Weighmaster shall keep a permanent record of each telephone contact he makes with the L&A yard office.
“The above instructions are being issued for the purpose of making the joint use of the 'Carla track safe for both crews. This office has attempted to cover any contingency that might arise. However, should there be any question in the minds of the Solvay crew as to whether they have a clear track to Carla, do' not move until a certainty can definitely be established. Needless to say it is expected that the Sol-vay crew when en route to Carla will handle the train in such a manner that it is under complete control at all times.”

The burden of plaintiff’s contention is that defendant negligently disregarded the operational procedure outlined in the above instrument. Defendant equally as seriously and diligently contends that the accident resulted by reason of a complete disregard of the operational procedure by the decedent and other responsible employees and officials of intervenor. For reasons which are hereinafter set forth in the course of this opinion, we are much inclined to the belief that the memorandum set forth and its bearing upon the accident, which is the basis of this litigation, have been overemphasized. Nevertheless, recognizing the distinguished counsel representing the parties litigant in this cause as being among the most outstanding and able trial lawyers in the State, we are impelled to note and discuss the several contentions which are urged by them.

' The testimony in the voluminous record before us, which was assembled over a period of four days of trial, bearing upon this particular point was so contradictory as to defy every effort at reconciliation. In discussing this point it is necessary that we outline as. briefly as may be the testimony bearing thereon, hopelessly conflicting though it is.

Plaintiff’s'witness, John W. Harper, who holds the position and title of weighmaster for the Solvay Company, testified positively that he called defendant’s telegraph operator, C. I. Row, at 11:15 o’clock on the morning of the fateful day of September 17, 1945, advising the said operator that the plant was short of empties and if defendant’s train could not get out to the plant by 1:00 P.M. he would bring the Solvay. train in to Carla. Defendant’s operator, Row, testifies just as certainly that Harper fixed the hour not at 1:00 P.M., but at 1:00 or 1:30 P.M.

In this conflicting testimony lies the crux of the opposing charges of violation of the operational agreement.

The undisputed facts show that Harper, who in his position as weighmaster was in charge of the Solvay train and its operations, proceeded to act in full and complete accordance with the details of the understanding as to which he testified. At about 12:30 P.M. the Solvay crew began assembling its train, consisting of 12 loaded cars, weighing, connecting and coupling same to the locomotive. At 1:05 P.M. the Solvay train began its trip to Carla, reaching ’the point of the accident, some mile and three quarters or two miles distant, at 1:1S P.M.

It is inconceivable that Harper, an experienced man, who had occupied a responsible position for a period of many years with -the Solvay Company, would have permitted a train under his direction to enter upon a trip on a single line track 25 minutes before expiration of the deadline which he himself had fixed in his conversation with defendant’s operator some two hours before.

It is strenuously and skillfully urged on behalf of defendant that the circumstances surrounding the actions of its employees are also in full and complete accord with their understanding of Harper’s telephone conversation. In support of this argument it is contended that Row made a written memorandum of the conversation, which memorandum was taken over by defendant’s yardmaster, one John Rogers, from which he made up a similar memorandum, a carbon copy of which he gave to the listman. It is claimed that in accordance with this alleged authority to move on the track defendant’s employees properly proceeded with their operations in the belief that there would be no movement from the Solvay plant to Carla before 1:30.

Under the circumstances we are unable ■to sustain defendant’s position, and in support of our conclusion we cite the following facts which are completely and utterly at variance therewith.

First, according to the testimony of defendant’s operator, Row, his conversation with Harper was not conclusive, for he himself testified that he told Harper it would be necessary for him to call back. Row was unquestionably without any authority to make any arrangement, particularly in view of the fact that defendant’s yardmaster, Rogers, who was the responsible official, was not even on duty at the time. As a matter of fact, it developed that Rogers, without making any effort to confirm any arrangements, left the Carla yards ■and went home to lunch, and was there during the time of the movement of the trains and the accident.

Second, we are impressed with a circumstance which vigorously militates against defendant’s contention. Admittedly, Harper was in need of empty cars at the Sol-vay plant, and it was with the transportation of these empties from Carla yards to the plant that he was primarily concerned. This being a fact, to the knowledge of defendant’s officials and employees, it is not reasonable to believe that defendant’s locomotive was switching 21 empties for the purpose of clearing a track in order that the locomotive might alone proceed to 'Carla for the purpose of picking up the loaded cars and returning therewith. Yet these ■are the facts which are testified to by defendant’s witnesses.

Third, there is the time element to be considered. If in truth 1:30 was the under7 stood ultimate deadline by which defendant’s locomotive must be at the Solvay plant, the fact that it was engaged at 1:15 in switching operations which of necessity must have been completed before beginning the trip outbound from Carla leaves considerable doubt as to whether the deadline could have been met. We are firmly convinced that defendant’s employees, if in reality they intended -this operation, were guilty of negligence in cutting the time margin to a point which, according to our view, imputes negligence and lack of proper precaution despite the testimony of defendant’s listman to the effect that the “light” engine could have made the trip in the time available.

Fourth, and finally, it is clear, accepting the testimony 'of defendant’s witnesses at face value on this point, that the agents and employees of defendant violated the express requireménts of the memorandum governing operations with respect to the provision requiring telephone contact for the purpose of advising of the proposed movement.

Consideration of the above facts inescapably leads to the conclusion that defendant’s major position is untenable.

By way of argument it might be urged on defendant’s behalf that Harper was guilty of negligence in ordering the movement of the Solvay train before again contacting defendant. This argument might be persuasive were it not for the fact that Harper’s actions substantiate, beyond any question in our minds, his testimony that he had advised defendant’s operator that he would move from the Solvay plant after 1:00 P. M. There is a further fact to be considered in this connection, namely, that Harper testified to making several efforts to contact defendant’s operator between 12:30 and 1:00 o’clock. The attempt is made by learned counsel for defendant to seize upon this point as indicative of Harper’s uncertainty. This conception is somewhat strained in the face of the very practical assumption that Harper was simply attempting to determine whether defendant’s train was actually en route.

Despite the fact that out of deference to diligent counsel we have devoted such detailed consideration to the point discussed, we are firmly of the opinion that this is not a controlling issue. Conceding, arguendo, the negligence of Harper, the Solvay yardmaster, in failing to properly contact defendant for the purpose of definitely fixing the time of movement of the .Solvay train, this would not be a proximate cause of the accident. If, and only if, the collision had occurred between the Solvay train proceeding to Carla and the defendant’s train or locomotive actually engaged in proceeding toward the Solvay Plant, would this issue be of such pertinency and material effect as to control the finding of negligence.

We are further inclined to the same conclusion by reason of the fact that the negligence of the Solvay weighmaster, under the doctrine of respondeat superior, cannot be imputed to Alford, a subordinate employee. In other words, defendant has failed to show any knowledge in or responsibility upon Alford which would charge him with negligence by reason of his failure to comply with the precautionary requirements embodied in the memorandum above set forth.

Thorough consideration of this case convinces us that judgment must rest upon a determination of the issue of negligence on the part of defendant’s agents and employees in connection with the operations in which they were actually engaged at the time of the accident.' On this point we have encountered comparatively little difficulty in reaching a conclusion. The facts above related conclusively show that defendant’s locomotive, coupled to a string of 21 empty freight cars to which the air brakes had not been connected, backed out of the Carla yard tracks on to the Sol-vay line, along which it was proceeding for the purpose of clearing the Carla west switch. Due to the curve of the track the engineer and fireman of defendant’s locomotive could see in the direction of their following train of empties for a distance of only some six or seven car lengths. The crew brakeman was in position on top of one of the cars and it was his duty, under the circumstances of the operation, to catch the signal from the listman at the time the last car passed the switch, and relay same to the engineer or fireman. The testimony preponderates in favor of the fact that immediately preceding the collision both the engineer and fireman were intent in watching for such a signal. It is therefore apparent that -their attention was in exactly the opposite direction from the approach of the Solvay train despite the fact that they were on a single line open track, and negotiating a dangerous curve. This is indisputable in view of the fact, which is uncontradicted, that the fireman of defendant’s crew did not observe the approach of the Solvay train until he heard the last of three whistle blasts, and the engineer was entirely in ignorance of the danger, heard none of the whistle blasts and received his warning of danger from his fireman. Unquestionably, these engine men were guilty of gross negligence in not maintaining a proper lookout under the existing conditions.

It may be contended that a careful lookout to the rear of defendant’s moving train was unnecessary since the crew was under the impression that no train would move from the Solvay plant before 1:30. This is a specious argument. If, as a fact, which is somewhat questionable, this was the understanding of defendant’s train crew, it was an understanding which had been reached some two hours before and there would not have .been the slightest reason in the world for them to assume that the plans of operation might not have been changed at any time up to the very moment they were ready to begin an actual trip to the Solvay plant.

A backing operation by any vehicle is hazardous at any time, and under the conditions and surroundings described, this particular operation was fraught with possibilities of the most serious and immediate danger. We can conceive of no excuse for the failure of defendant’s crew to take reasonable and proper precautions in the execution of this movement. Unquestionably, their negligence in this respect was the immediate and proximate cause of the accident.

The need for extraordinary caution on the part of defendant’s crew under the circumstances of this case was emphasized by past experience. The testimoñy in the record, as adduced from witnesses for defendant as well as plaintiff, incontrovertibly establishes the fact that on one occasion, within a period of only some 30 days more or less prior to the accident here involved, defendant’s locomotive, proceeding toward the Solvay plant, had met a train en route to Carla and, of necessity, had been forced to stop and reverse directions and retrace its route in order to avoid an accident. Indeed, there is some substantial testimony to the effect that defendant’s crew had encountered this same situation on several occasions. These incidents should have impressed defendant’s employees with the need for- exercising the highest possible degree of care in connection with their operations on the Solvay track.'

It is now necessary to proceed to.a consideration of the defense of contributory negligence. First, defendant urges that the air brakes were not connected .on all of the 12 cars of the Solvay train. This charge has not been established by the preponderance of the evidence. It is true that defendant’s claim adjuster and traveling engineer testified that a test of several of the cars at the rear of the Solvay train indicated that the air brakes were not operating. These tests by the witnesses referred to were made by “feeling the bleed rods” of the cars. Each of these witnesses approached the scene of the accident, several hours after the occurrence, from the rear of the Solvay train. They testified that the test which they made failed to disclose connected air brakes until they had reached the fifth or sixth car from the rear end of the train. Their testimony is refuted not only by that of plaintiff’s witness, Harper, but we think conclusively by a completely disinterested witness, one Delton Varnell, who came upon the scene of the accident very shortly after it occurred and whose testimony on this point was both intelligent and certain to the effect that the air’brakes, were connected on the rear cars of the Solvay train.

Defendant has also attempted to make the point that the deceased engineer, Alford, was guilty of negligence by reason of the improper manner in which he attempted to apply the brakes of his train when confronted by the existing emergency. Even had this fact been conclusively established, which it was not, it is susceptible to brief disposition on the ground that the operator of a vehicle is not chargeable with negligence by reason of a mere error of judgment with respect to his reaction in an emergency.

We find no other points in connection with the several allegations of contributory negligence which we deem of sufficient substance or pertinence to merit detailed consideration. We pretermit discussion of the question of excessive speed of the Solvay train since we could not consider even the top estimate of six miles an hour to be excessive under the circumstances.

Without question the decedent, Alford, was maintaining a careful lookout. The brakeman on the front board of the locomotive, the fireman in the cab, were on the alert. It is a tribute to Alford’s diligence in this respect that he noticed and evaluated the presence of danger even before he actually saw defendant’s train. Instinctively responding, he attempted to warn, by whistle blasts, the operators of any train occupying the track ahead of him, and immediately upon seeing physical evidence of the approaching train he made every effort to avoid the accident.

Insofar as we are able to determine there are no points of law involved in the instant case, and it must turn entirely upon a determination of facts. Our appreciation of the facts reflected in the record results in the findings which we have set forth, namely, that plaintiff has established negligence on the part of defendant and defendant has failed to satisfactorily substantiate its charge of contributory negligence as against decedent. These were the conclusions reached by our learned brother of the district court, with whose findings we are in complete accord.

Diligent counsel for defendant, in oral argument and in brief before this court, challenges the right of the court to consider the testimony of Rufus G. Coleman elicited by plaintiff, on cross-examination, on trial of this case. The objection is based on the argument that the testimony cannot be considered against Coleman’s codefend-ant, the Louisiana & Arkansas Railway Company, and that the force of this ob^ jection is not lessened by the subsequent dismissal of the suit against Coleman.

With respect to this contention, we are impressed with the fact that counsel admitted in brief that he saw nothing contradictory in Coleman’s testimony. We have carefully examined the testimony adduced on cross-examination and find nothing in the same which is prejudicial or detrimental to appellant’s defense. In our opinion the particular testimony originally given on cross-examination could be entirely eliminated without adverse effect upon plaintiff’s position and, conversely, it is susceptible of being retained and considered without adverse effect upon the position taken by defendant railway company. For this reason we thin-lc the question raised is moot and without material or pertinent bearing upon the issues presented.

There remains for our attention only the matters presented in the answers of plaintiff and intervenor to defendant’s appeal. We have given careful consideration to plaintiff’s plea for an increase in the amount of the judgment. The decedent was 48 years of age and at the time of his death was earning a salary of $215.00 to $225.00 per month in the employ of in-tervenor. His life expectancy was something in excess of 22 years. These factors, together with the loss of support, companionship, love, care and protection, were all taken into consideration by the district judge in arriving at the amount of his award, which we think is adequate.

With respect to intervenor’s plea for an increase in the amount of attorney’s fees and the allowance of the amount expended for burial and ambulance charges, we are disposed to feel that the sum of $750.00 as compensation for attorney’s fees is reasonable. The sum of $15.00 claimed for ambulance charges was not established by the proof, and therefore was properly disallowed.

While it is true that Section 7 of Act No. 20 of 1914, as amended, Dart’s Statutes 4397, does not specifically provide for the right of an employer to recover any amounts except compensation payments, attorney’s fees and costs, we think it would be inconsistent with the obvious purpose and intent of the provision to refuse the right of an employer to recover other necessary expenses which it has paid out. This would appear,to be the trend of holdings in the comparatively recent cases of Maddox v. Pattison, La.App., 186 So. 894; Williams v. Campbell, La.App., 185 So. 683; Streetman v. Andress Motor Co., La.App., 189 So. 321, 323. In this case the employer established the payment of the sum of $150.00 for .burial expenses, which sum we believe him entitled to recover.

In a supplemental and amended answer to the appeal intervenor further prays for the allowance of legal interest on the amount of compensation. For the same reasons as above stated in connection with the claim for reimbursement of burial expenses, we think the demand is proper and should be allowed.

For the reasons assigned the judgment appealed from is amended to the extent that there is now judgment in favor of the Solvay Process Company, intervenor, against’the defendant, Louisiana & Arkansas Railway Company, and the plaintiff, Mrs. Jessie Lowe Alford, in solido, in the full sum of $1,000.00, plus whatever additional amount or amounts intervenor may have paid or may pay in the nature of compensation to the said named plaintiff, together with interest on said amounts so paid, or which may he paid, at the legal rate, from date of payment -thereof, together with the sum of $150.00 heretofore paid by intervenor for burial expenses, and the further sum of $750.00 as attorney’s fees for instituting and prosecuting its claim and intervention. It is further ordered that the judgment in favor of intervenor have preference and priority, and that said amount as above stated be paid to the intervenor by the defendant' railway company out of the total amount of the judgment awarded plaintiff.

As amended the judgment appealed from Is affirmed at appellant’s cost.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    DEMBY v. PLISCHKE et al.
    No. 7268.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Stafford & Pitts, of Alexandria, for appellants. «■
    C. E. Laborde, Jr., of Marksville, for ap-pellee.
   KENNON, Judge.

Henry Demby on July 16, 1946, was injured while driving on Oldsmobile sedan owned by his employer, Co’nsolidated Companies, Inc. Alleging that the collision occurred through the negligent operation of a pick-up truck operated by defendant, Edward J. Plischke, owned by defendant Midwest Dairy Products Corporation and insured by defendant Hartford Accident and Indemnity Company, Demby filed suit for $2,836 damages against the three named defendants.

Demby’s petition set forth that while proceeding in the direction of Alexandria, Louisiana on the Marksville-Alexandria highway, and after he had safely passed a Dodge sedan (driven by a Mrs. Allen) -and returned to his right lane of the highway, a pick-up truck operated by defendant Plischke was approaching from the opposite direction; that this - truck left its right lane and drove partly on the right shoulder, then sharply turned left and an-gularly across the highway into Demby’s lane of traffic; that despite the fact that plaintiff turned the Oldsmobile to the right and partly upon the shoulder and despite the prompt application of the brakes for a distance of about ninety feet, the truck ran into the left front of the Oldsmobile, completely demolishing same -and injuring plaintiff and the other occupant of the car. The specific acts of negligence charged against Plischke were that he failed to keep a proper lookout; that he failed to reduce his speed; that he negligently drove the truck on to the shoulder of the road and negligently cut back sharply and failed to keep the truck under control.

The three defendants answered, admitting the happening of the collision, but set forth that the collision was caused solely by the negligence of the plaintiff. The defendants specifically charged that plaintiff, while traveling west at a speed of at least seventy miles an hour, suddenly cut out to his left and from behind a cream colored car (the Dodge driven by Mrs. Allen) at a. time when defendant Plischke was so neár that a head-on collision was inevitable; that in this emergency Plischke pulled to the right shoulder, losing control of the truck, which veered back on to the paved portion where it was struck by plaintiff’s Oldsmobile sedan. In the alternative, in the event the Court should hold defendant Plischke negligent, defendants pleaded that the above acts of the plaintiff constituted contributory negligence and pleaded same as a bar to his recovery.

Victor J. Kurzweg, who was president of the corporation employing Demby and the only passenger in the Oldsmobile, for which plaintiff Demby was chauffeur, filed a separate suit against Plischke, his employer and its insurer.

The American Automobile Insurance Company, as subrogee under it’s insurance policy covering the Oldsmobile driven by Demby and as compensation carrier for Demby’s employer, also filed suit against Plischke, his employer and its insurer. .

Edward J. Plischke, driver of the pick-up truck, who was injured in the collision, filed suit for damages against the Consolidated Companies, Inc. (owner of the Oldsmobile), Victor J. Kurzweg, who was in charge of the Oldsmobile at the time of the collision, and the American Automobile Insurance Company, carrier of insurance on the Oldsmobile.

The Midwest Dairy Products Company filed suit against the same defendants asking for judgment for the damage done to the pick-up truck and its contents.

The five suits were consolidated for trial.

The District Court, in a lengthy and well considered written opinion, found that defendant Plischke was guilty of negligence in operating his truck at an excessive speed, and in failing to check this speed and in erroneously assuming that the circumstances required him to drive his •truck off the pavement, and in failing to keep his truck und,er control, and rendered judgment in favor of Demby, the chauffeur of the Oldsmobile, Victor J. Kurzweg, passenger in -the Oldsmobile, and the American Automobile Insurance Company, carrier of public liability insurance on the Oldsmobile and of compensation insurance on its passengers, and rejected the demands of Plischke, driver of the pick-up truck, and of Midwest Dairy Products Company, owner of the truck and employer of Plischke.

The five cases were consolidated for argument in this Court for the reason that a decision in each and all of the cases can be reached once it is decided whether the collision was caused through the negligence of the driver of the Oldsmobile sedan in passing the Allen Dodge while in too close proximity to the on-coming Plischke pick-up truck, or whether the collision resulted from the negligence of Plischke in unnecessarily driving his fast moving pick-up truck on to his right shoulder and suddenly veering same into the path of the Oldsmobile after it had successfully passed the Allen Dodge and was traveling in its own lane of traffic.

Plischke, driver of the pick-up truck, testified that he was traveling at forty miles per hour and approaching an elevation, which obstructed his view; on the other side of the crest; that he was meeting the Allen- Dodge when the Oldsmobile “darted right out at me;” thfit he,yanked his car to the right to avoid a head-on collision and “because I was scared it would turn over,” he turned back to the left and the two cars collided. He testified positively that he was “fully on the (his) right side -of the road” and that over three-fourths of the approaching Oldsmobile was in the pick-up truck’s lane of traffic. He further testified that had he continued in his own lane that “we (the Oldsmobile and the pick-up) would have hit properly head-on in the lane of traffic we were driving in.”

Demby, driver of the Oldsmobile, testified that he had passed the Allen Dodge going in the same direction as the Oldsmobile, and noticed the pick-up truck going off the highway on its right side and cutting sharply back on to the highway; 'that he immediately applied brakes and started pulling off the highway so as to give the pick-up as much room as he possibly could to straighten up, and that the right side of the pick-up truck struck the left front and side of the Oldsmobile car which was, at that .time, partly off the pavement on its right side of the highway.

The testimony of Plischke was supported by that oí the two ladies on the front seat of the Allen Dodge, who testified that the pick-up was only twenty-five feet in front of their Dodge when the Oldsmobile began passing the Dodge, and by Mr. Franklin, manager of the company which owned the pick-up, who testified that from the position of the debris and broken glass, etc., the accident must have happened “on Plischke’s right side of the road.”

Demby’s description of the accident was substantiated by the testimony of Mr. Kurzweg, one' of the parties to the suit, who was the passenger in .the Oldsmobile, who said he heard Demby blow his horn prior to passing the Allen Dodge, and, feeling the brakes go on a few minutes later, he looked up and saw the approaching pick-' up “shimmying or wobbling with two wheels on the shoulder” and saw it cross over to its left side of the road and strike the Oldsmobile between .the center of the hood and the left wheel and that the impact of the truck swung the truck around so that its left rear end hit the left rear door of the Oldsmobile, causing the pick-up to turn over on its side.

We are greatly assisted in deciding between the conflicting versions of the accident by the testimony of State Trooper McCollum and of Mr. Albert Laborde, in front of whose home the collision occurred. McCollum arrived soon after the collision, and, immediately after taking Mr. Plischke to the near by Marksville Clinic, he returned and made a detailed on-the-spot investigation. He found plain skid marks showing that Demby, driver of the Oldsmobile, had skidded the brakes thirty-one yards, starting about one foot on its right side of the black line and gradually going to its right shoulder of the road. He found that at the point of.impact, the front wheels of the Oldsmobile instead of skidding straight, “had a sharp skid to the right;” that at the point of impact, the left wheels of the Oldsmobile were three feet on the pavement and the right wheels were both on the shoulder of the road. His examination of the automobile verified the testimony of Mr. Kurzweg, as Trooper McCollum found that “the right front of the truck was damaged while hitting the left front of the Oldsmobile.”

Trooper McCollum found that the tools and contents of the truck were widely scattered, some of them stopping as far away as 125 feet from the point of impact. He examined the highway west of the collision point and found that the pick-up truck had first left the road and gone on the shoulder at a distance of 200 feet from the point of collision. Trooper McCollum estimated the speed of the pick-up at fifty miles an hour and said that Plischke told him that he was driving forty-five miles an hour at the time he turned on the shoulder and had not slowed down at the time of the impact.

Mr. Albert Laborde was one of the first at the scene of the accident. He testified that from his observations, he believed the collision took place on the Oldsmobile’s right side of the road. He assisted in picking up the tools and other contents of the pick-up truck, which were “spread all along at different places.”

The evidence as a whole convinces us that Plischke was mistaken in his testimony that any portion of the Oldsmobile was on the pick-up’s right side of the road at the time of impact; we find that the Oldsmobile returned to its own side of the road when the pick-up was over 200 feet away and was half way off'the highway, on the shoulder, and almost at a standstill when the collision took place.

This Court had occasion to pass on a case in some respects similar to the one now before us, Smith v. Tri-State Transit Company of Louisiana, Inc., et al. The original opinion in this case was reported in La.App., 171 So. 119, and on rehearing in La.App., 175 So. 83, 84.

In that case, plaintiff’s car, traveling east, collided with defendant’s approaching bus at a point 400 feet east of the crest of a rise in the road. Plaintiff’s principal charge against defendant was that the bus driver violated the law in attempting to pass a car on the highway in a short distance of the crest over which the coupe came and that an emergency was thereby created, causing the collision when Mrs. Smith lost control of her car. In the opinion on rehearing, the Court quoted from plaintiff’s brief in which it was charged that when Mrs. Smith came over the crest, the bus was coming towards her at a distance 580 feet away and “to say the least, astride the black medial line of the road and blocking her lane of traffic,” and that “this combination of circumstances created an emergency.” The Court in its opinion observed, “should this distance be conceded correct, then the bus driver is exonerated from the charge of violating the highway traffic act [then Act No. 21 of 1932, § 3, rule 7(d) and now Act No. 286 of 1938, Section 3, Rule 7(d)], which reads:

“ ‘The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction, approaching the crest of a hill or substantial grade, or upon a curve in the highway or elsewhere, where the view of the driver doing the overtaking or passing is obstructed within a distance of five hundred (500) feet.’ ”

In the case before us, we believe that the physical facts support the finding of the District Court that the Oldsmobile driver, Demby, at the time he began the passing maneuver around the Allen Dodge was well over 500 feet away from the approaching Plischke pick-up truck. This is based upon the calculation that each vehicle, at the time the passing maneuver was begun, was over 250 feet from the point of final impact.

The pick-up was 200 feet from the point ■of impact at the time it turned onto the shoulder of the road. Plischke was admittedly traveling at a minimum speed of forty-five miles an hour. Three-fourths •of one second is considered the average .reaction time (the time elapsing from the first discovery of danger by the driver of an automobile and his application of physical force to the wheel or brake). At forty-five miles an hour, Plischke would have traveled approximately 75 feet after sensing danger and before the turning movement was 'made effective. Thus Plischke was around 275 feet from the point of impact when he saw the Oldsmobile start .around the Dodge.

The Oldsmobile driver had completed the passing maneuver, returned to his own side of the road and applied the brakes while still 91 feet from the impact point. Obviously, it required more than 175 feet for the Oldsmobile to have negotiated the passing maneuver (75 yards or 225 feet was the distance accepted by the Court in the Smith case, supra, as being necessary for the passing maneuver in that case). Allowing a minimum of 55 yards (165 feet) for the Oldsmobile to travel in completing' the passing maneuver — after coming in the sight of Plischke — Demby was over 250 feet from the point of impact, and therefore well over the required clear 500 feet from the pick-up, when he began to pass the Allen Dodge.

As often occurs in collision cases, the occupants of the automobiles involved and other eye witnesses are in wide divergence •as to the facts and circumstances leading up to the collision. However, after reading the record, we are clearly convinced that our learned brother of the District Court correctly concluded that the Oldsmobile sedan passed the Allen Dodge at a time when fhere was room to safely conclude the passing maneuver; that the Oldsmobile timely returned to its own side of the highway and its driver kept it under complete control and slowed it down to an almost complete stop with both right wheels off the paved portion of the highway at the time of the accident, and that the collision resulted from the negligence of Plischke, driver of the pick-up truck, when he, without slackening his speed, unnecessarily drove the truck onto the shoulder of the highway, lost control and veered the vehicle back into the highway across the center line of the highway into its own left side, where it struck the Oldsmobile.

Separate decrees will be entered in each of the consolidated cases. We have written this opinion under case No. 7268, entitled Henry Demby v. Edward J. Plischke, et al. Demby sued for/$2,836. The District Court allowed a total of $600, which we consider a fair award under the circumstances disclosed by the record.

The judgment in favor of Henry Demby and against Edward J. Plischke, Midwest Dairy Products Corporation and Hartford Accident and Indemnity Company, in sol-ido, is affirmed, with costs.


text:
    KURZWEG v. PLISCHKE et al.
    No. 7266.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Stafford & Pitts, of Alexandria, for appellants. ■
    C. E. Laborde, Jr., of Marksville, for ap-. pellee. .
   KENNON, Judge.

The District Judge allowed plaintiff Victor J. Kurzweg $1500 for pain and suffering, after finding that he had remained in the hospital for two„weeks. The evidence showed that he was not completely well when discharged and that even at the time of the trial, he still experienced some difficulty in raising his arm. Under these .circumstances, .we conclude that the award of $1500 for pain and suffering is adequate, but not' excessive.

On the question of loss of income, the record shows that plaintiff received his full salary during the time he was in the hospital. Mr. Kurzweg, who testified that he owned the largest single block of stock in the Consolidated Companies, Inc., said that he remained as president of the company following the accident on July 16, 1946 until the next meeting of the stockholders, which occurred either in September or October, and that at that time he resigned as president in favor of his son and accepted a position as chairman of the board of directors at a salary of $12,500 per year (as compared with a salary of $18,500 a year which he received as president of the company). He frankly testified that, previous to the accident, he had planned to place his son in control of the business at some future date, and upon being incapacitated by the injury, he decided to-go ahead with this arrangement. The record shows that he 'was paid compensation of $54.29, or for a period of less than three weeks. Under' these circumstances, we-think that an award of $1500, or approximately one month’s salary, for loss of income would be equitable.

His medical expenses were $660.30, of which $500 was paid by the compensation carrier, leaving a balance of $160.30. '■

For the reasons above assigned, and those assigned in, La.App., 38 So.2d 266, the judgment appealed from is amended by reducing same to $3160.30, and as amended, same is affirmed. Costs of appeal to be-paid by plaintiff, all other costs to be paid by defendants.


text:
    AMERICAN AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. MIDWEST DAIRY PRODUCTS CORPORATION et al., Defendants-Appellants.
    No. 7264.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.

      Stafford & Pitts, of Alexandria, for appellants.
    White, Holloman & White, of Alexandria, for appellee.
   KENNON, Judge.

The District Court gave judgment in favor of the American Automobile Insurance Company for the exact amounts paid by it as compensation to Mr. Kurzweg and to Henry Demby; for the amounts expended by it for surgical and hospital expenses to the same parties; and for the proven damage to the Oldsmobile sedan. These amounts were proven and are not here contested.

For the reasons assigned in, La.App., 38 So.2d 266, the judgment is affirmed, with costs.


text:
    Edward J. PLISCHKE, Plaintiff-Appellant, v. CONSOLIDATED COMPANIES, Inc., et al., Defendants-Appellees.
    No. 7265.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Stafford & Pitts, of Alexandria, for appellant.
    White, Holloman & White, of Alexandria, and C. E. Laborde, Jr., of Marksville, for appellees.
   KENNON, Judge.

For the reasons assigned in, La.App., 38 So.2d 266, the judgment rejecting plaintiff’s demand is affirmed, with costs.


text:
    MIDWEST DAIRY PRODUCTS COMPANY, Plaintiff-Appellant, v. CONSOLIDATED COMPANIES, Inc., et al., Defendants-Appellees.
    No. 7267.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Stafford & Pitts, of Alexandria, for appellant.
    White, Holloman & White, of Alexandria, and C. E. Laborde, Jr., of Marks-ville, for appellees.
   KENNON, Judge.

For the reasons assigned in, La.App., 38 So.2d 266, the judgment rejecting plaintiff’s demands is affirmed, with costs.


author: PONDER, Justice. McCALEB, Justice. O’NIELL, Chief Justice

text:
    214 La. 606
    STATE v. POE.
    No. 38702.
    Supreme Court of Louisiana.
    March 22, 1948.
    On Rehearing Dec. 13, 1948.
    Further Rehearing Denied Jan. 10, 1949.

      Parker & Parker, of Jena, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., C. C. Minard, Dist. Atty., of Columbia, and Bolivar E. Kemp, Jr., of Amite, for appellee. ,
   PONDER, Justice.

The defendant was convicted under an indictment charging him with an attempt to commit the crime of simple kidnapping and sentenced to serve fifteen months in the penitentiary. He has appealed from the conviction and sentence.

The defendant is urging on this appeal forty bills of exceptions taken by his counsel to the rulings of the trial judge during the course of the trial. A serious bill of exception urged by him was taken to the refusal of the trial judge to instruct the jury that a verdict of simple assault would be responsive to the offense charged in the indictment.

The pertinent provisions of our law dealing with responsive verdicts are as follows:

“Whenever the indictment sets out an offense including other offenses of less magnitude or grade, the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment, and in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide.” Article 386, Code of Criminal Procedure.
“The verdict must be responsive to the indictment, that is to say, no one can be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged; and no verdict can be of any effect if found upon an indictment so defective as to charge no crime.” Article 405, Code of Criminal Procedure.
“When the crime charged includes another of lesser grade, a verdict of guilty of the lesser crime is responsive to the indictment, and it is of no moment that the. greater offense is a felony and the lesser a misdemeanor.” Article 406, Code of Criminal Procedure.
“An offender who commits an offense which includes all the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses. In such case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the lesser and included offenses.” Article V of the Criminal Code, Act 43 of 1942.

The defendant was charged in the indictment with “attempt to commit the crime of simple kidnapping, as defined and denounced by Article 27 and Article 45, Section 1 of the Louisiana Criminal Code, in that he did wilfully and feloniously attempt to intentionally and forcibly seize and carry away the person of one - from one place to another without her consent.” The indictment follows the language of Section 1 of Article 45 of the Criminal Code. This article of the Criminal Code sets forth in the disjunctive three distinct ways that the offense of simple kidnapping may be committed and the defendant is charged with attempting to commit the one set forth in Section 1 of that article.

A battery is defined as “the intentional use of force or violence upon the person of another; or * * .” Article 33, Louisiana Criminal Code. An assault is defined as an . attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. Article 36, Louisiana Criminal Code. Assault is sub-divided into aggravated and simple assault, depending upon whether or not a dangerous weapon was used in committing the offense. Under the provisions of Article 27 of the Criminal Code an attempt to commit any crime is made an offense. There can be no attempt to commit an assault because such an offense is in the nature of an attempt to commit a battery.

The crime charged in the indictment is an attempt to intentionally and forcibly seize and carry the person from one place to another without her consent. An assault is an attempt to commit a battery or in other words an attempt to intentionally use force or violence upon the person of another. An attempt to intentionally and forcibly seize and carry a person includes all the elements of an assault which is an attempt to intentionally use force or violence upon the person. The offense charged includes all the elements of the lesser offense of simple assault and a verdict of simple assault would be responsive. It is not necessary for the lesser offense to contain all the elements of the greater offense because in such event it would constitute but one or the same offense. The greater offense necessarily contains additional elements and all that is required is that the greater offense must include all the elements of the lesser offense in order to make a verdict of the lesser offense responsive. As we take it, the reason underlying this rule of law is to meet the constitutional requirement of informing an accused of the nature and cause of the accusation. A person informed of an attempt to forcibly seize and carry a person from one place to another is fully informed that he has attempted to intentionally use' force or violence upon that person. We are of the opinion that a verdict of simple assault is responsive to the crime charged and that the trial judge erred when he refused to instruct the jury to that effect.

Since we have arrived at the conclusion that the verdict and sentence must be set aside because of the failure of the trial judge to instruct the jury that the verdict of simple assault would be responsive to the offense charged in the indictment, it is not necessary to pass on the other bills of exceptions.

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

HAWTHORNE and McCALEB, JJ., dissent.

On Rehearing.

McCALEB, Justice.

A rehearing was granted in this case for the purpose of considering whether the ruling that a verdict of simple assault is responsive to a charge of attempted simple kidnapping is contrary to the decision in State v. Roberts, 213 La. 559, 35 So.2d 216, which was handed down on the same day.

In State v. Roberts, supra, the defendant was indicted for attempting to murder one Cas Shirley by shooting him with a pistol. He was found guilty of aggravated battery. On appeal, he contended that the verdict was not responsive within the meaning of Articles 386, 405 and 406 of the Code of Criminal Procedure and Article 5 of the Criminal Code (which deal with responsive verdicts), because all o.f the elements of aggravated battery were not necessarily included in the definition of the crime of attempted murder. The State maintained, on the other hand, that it was not obligatory for all of the elements of aggravated battery to be necessarily included in the definition of attempted murder and that it sufficed that the indictment allege a state of facts containing all the ingredients of the lesser offense. And it was argued that, since the indictment averred that the defendant committed attempted murder by shooting Shirley with a pistol, the charge itself exhibited commission of aggravated battery as well as attempted murder : and that, therefore, the verdict of the former was responsive.

After reviewing the applicable law and jurisprudence on the subject, we rejected the contention of the State and, citing with approval State v. Antoine, 189 La. 619, 180 So. 465 and State v. Jacques, 45 La.Ann. 1451, 14 So. 213, we said:

“Comparison of the provisions of Articles 386, 405 and 406 of the Code of Criminal Procedure and Article 5 of the Criminal Code, which we have quoted above, with the prior jurisprudence discloses that the former are in reality a codification of the well-settled pronouncements of this court relative to greater and lesser offenses and responsive verdicts. Under the law and the jurisprudence it is vital to the validity of any verdict for a lesser offense that all the elements of that offense are necessarily contained in the definition of the greater See 213 La. 566, 567, 35 So.2d offense. 218. .

The foregoing declaration of the test to be employed in determining the responsiveness of a verdict for a lesser offense is fully supported by a statement, couched in similar terms, in State v. Desselles, 150 La. 494, 90 So. 773, from which we quoted with approval in the Roberts case.

In reaching the conclusion in the instant case that a verdict of simple assault is responsive to the charge of attempted simple kidnapping, it was reasoned that “ * * * all that is required is that the greater offense must include all the elements of the lesser offense in order to make a verdict of the lesser offense responsive.” We now find that this statement is not entirely accurate for, as we observed in the Roberts case, the test is whether the definition of the greater offense necessarily includes all the elements of the lesser. Stated in another way for practical application, this merely means that, if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive.

Guided by these principles, we turn our attention to the question presented in the case at bar. Defendant is charged with an attempt to intentionally and forcibly seize and carry a young woman from one place to another without her consent — that is, he is charged with an attempt to commit the crime of simple kidnapping as defined by the first paragraph of Section 45 of the Criminal Code. If he were charged with the substantive offense, i. e., simple kidnapping by forcibly seizing and carrying the young woman from one place to another without her consent, it could be argued with profundity that a verdict of simple assault would be responsive for the reason that a forcible seizure doubtlessly embraces an attempt to use force and violence in restraining the liberty of the intended victim. But it does not follow that, because “forcible seizure” is an essential element of the crime of simple kidnapping, as defined in Paragraph I of Section 45 of the Criminal Code, it is necessarily an ingredient of the inchoate offense of attempting to commit the crime. Article 27 of the Criminal Code defines an attempt as follows :

“Art. 27. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
“Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

It will be seen from the first paragraph of Article 27 that the essential elements of an attempt are (1) a specific intent to commit a particular crime and (2) an overt act of commission or omission tending directly toward the accomplishment of the object. Thus, in the instant case, where it is charged that the defendant attempted to forcibly seize and carry a young woman from one place to another without her consent, it was only essential that the State prove the specific intent of defendant to commit the crime (simple kidnapping by forcibly seizing and carrying) and an overt act in pursuance of his purpose. It was not imperative for the State to show that the defendant physically attempted to forcibly seize the 'person of the young woman as the original opinion erroneously concludes. It was only necessary that the State prove that he committed an overt act in furtherance of his object — i. e., any act which may or may not have embraced a forcible seizure but did not necessarily include it. And, of. course, a verdict for simple assault could not be responsive, if the State was not required to prove an attempted forcible seizure.

Many instances could be given involving a state of facts authorizing a verdict of guilty of attempted simple kidnapping which would not necessarily embody an assault. However, for purposes of this discussion, one example will serve to demonstrate the error of our former conclusion. A. B. intends to kidnap C. D. He entices her into his automobile by telling her that he will drive her to her home, his real intention being to seize and carry her away. Yet, before she is made aware of his ulterior motive, the automobile breaks down or he is arrested for violating a traffic law or something else happens which deters him from the accomplishment of his obj ect.

Under such a state of facts, there could be no doubt that A. B. would be amenable to the charge of attempt, as defined by Article 27 of the Criminal Code — for, there are present the two elements necessary to constitute an attempt — (1) specific intent to commit simple kidnapping and (2) an overt act, i. e., the carrying of the girl in the. automobile — an act which “tends directly towards the commission of the crime intended, and which will apparently result in its commission unless frustrated by extraneous circumstances, * * Clark and Marshall, Law of Crimes, 4th Ed. 1940, 160, Section 118. Still, he has neither physically attempted to seize her nor has he assaulted her. If he had actually seized her, he would have been guilty of the substantive crime, simple kidnapping.

We therefore -hold that the judge ruled properly in refusing defendants’ request to charge the jury that it could return a verdict of simple assault.

Disposal of the foregoing bill of exception (No. 39) adversely to defendant entails a consideration of the other bills of exception, which are forty in number. In order that the varied points raised by defense counsel may be readily understood, it is apt to briefly outline the salient features of the case.

The defendant, Poe, was charged jointly with one Otis Ainsworth for the attempted simple kidnapping of the prosecutrix on May 21, 1947. They were arraigned and pleaded not guilty on May 26, 1947 and tried by a jury of five on June 23rd and 24th, 1947. Ainsworth was acquitted. Poe was found guilty and was sentenced to serve fifteen months in the state penitentiary at hard labor.

The State claimed that the prosecutrix was returning to her home in the town of Jena at about 9:00 o’clock on the night of May 21, 1947, after having attended the movie theatre; that, as she reached a point approximately a block from the theatre, the defendant, Poe, came up from behind, accosted her and grabbed her around the waist; that she protested and tried to get away from him but" he kept pulling her toward a log truck with a cab on it which was parked about twenty or thirty feet away; that Ainsworth was standing near the log truck; that the prosecutrix called to him but he did not render her any assistance; that, finally, her screams became so noticeable that Poe let her go and that he and Ainsworth went to the truck, boarded it and drove off.

Bills of Exception Nos. 1, 2, 3 and 5 have been grouped by defense counsel for purposes of argument under a general heading “Rushing of the case to trial precipitately.” The taking of these bills resulted from the overruling by the judge of objections by defense counsel to the hurried arraignment and trial of defendant.

None of these bills has the slightest merit. The defendant was arrested on May 21st and arraigned five days later, on May 26th. His trial on June 23rd and 24th, a month later, was in accord with constitutional precepts guaranteeing to the accused a speedy public trial. Section 9 of Article 1 of the Constitution. Counsel does not attempt to show that the time between the arraignment and trial was insufficient for him to fully prepare his defense or that ■other harm has resulted.

Bill No. 4 was taken to the refusal of the judge to grant in toto a motion for bill of particulars in which defendant requested the following information (1) the place where the offense occurred; (2) the manner in which the parties or either of them attempted to seize the prosecutrix; (3) the means or mode by which they or either of them attempted to carry her; (4) the part taken by each defendant in the perpetration of the alleged offense and (5) the steps taken by each or either to effect the attempt. The judge granted the first request but refused the others.

The complaint is without substance. The granting or refusal of a bill of particulars addresses itself to the sound discretion of the trial judge. State v. Augusta, 199 La. 896, 7 So.2d 177; Articles 235, 288, Code of Criminal Procedure.. The judge properly exercised his prerogative in denying defendant’s request as the information requested in the bill had no reference whatever to the charge but was plainly an attempt to obtain knowledge of the evidence upon which the State relied to prove its case.

Bill No. 6 was taken to the overruling of defendant’s objection to the court having the sanity commission supplement its report in accordance with the commission issued to them. Counsel states in his brief that this exception is “not herein urged” and the point was not argued orally. We therefore assume that it has been abandoned.

Bill No. 7 was reserved to the overruling of a motion to quash the petit jury venire. The motion was based on three grounds, the first of which is that the judge issued a written order in open court on May 26th 1947, summoning the jury commission to meet on June 3rd 1947, to select a special petit jury panel and subsequently during the day, but before the order was spread on the minutes of the court, verbally instructed the Clerk to insert June 4th instead of June 3rd as he had been informed that June 3rd was a legal holiday.

We find no merit whatever in this objection. The action of the judge in instructing the Clerk to change the date in the order signed by him was proper as the fixing of the date was a matter entirely within his control. Article 177, Code of Criminal Procedure. Moreover, even if it were otherwise, Article 203 of the Code of Criminal Procedure specifically declares that the venire may not be challenged because of any defect or irregularity in the manner of selecting the jury “or in the composition, summoning or proceedings of the jury commission, unless some fraud has been practiced or some great wrong committed that would work irreparable injury.” It is difficult to see that the defendant was in any way prejudiced by the mere change of the date on which the jury commission should meet.

The second and third grounds for the motion to quash the venire are that there were no World War II veterans on the jury list and that no members from the ward in which defendant lived were drawn on the jury panel, whereas, twelve members of the panel were drawn from the ward in which the prosecutrix lived. Neither one of the foregoing reasons states a legal cause for quashing the venire in the absence of fraud “or some great wrong committed that would work irreparable injury.” Article 203, Code of Criminal Procedure.

Bills of Exception Nos. 8 and 9 were taken to the overruling of objections made to the opening statement of the district attorney. The objectionable matter allegedly consisted of statements by the district attorney explaining to the jury the difference between the substantive crimes of aggravated kidnapping and simple kidnapping. The judge, in his per curiam to the bills, declares that, in his opinion, the statements of the district attorney were in keeping with the provisions of Article 333 of the Code of Criminal Procedure.

The statements complained of do not disclose that the judge abused the discretion vested in him. “The scope and extent of the district attorney’s opening statement is within the control of the trial judge in the exercise of a wise discretion, and a conviction will not be set aside for error therein unless the rights of a defendant were plainly violated. State v. Ricks, 170 La. 507, 128 So. 293; State v. McKee, 170 La. 630, 128 So. 658.” See State v. Nahoum, 172 La. 83, 133 So. 370, 374.

Bill No. 10 was reserved to the sustaining of an objection made by the district attorney to a question propounded to a brother of Ainsworth, who testified for defendants. He was being questioned about a conversation in the motion picture show with defendant, Poe, an hour or so before the prosecutrix was attacked and was asked “Then what did he say?” The district attorney objected on the ground that the question called for the giving of hearsay testimony and the judge sustained the objection, being of: the opinion that the evidence sought to be elicited did not come within any exception of the hearsay rule Counsel for defendant argue here that the evidence sought to be adduced formed part of the res gestae. It is said that, since the charge was an attempt to kidnap and the conviction depended upon the intent of defendants, it was proper to show that Poe, just shortly before the encounter with the prosecutrix took place, had evinced an intention not to commit such an act.

We see no merit in the bill. Suffice it to say that it called for the giving of hearsay testimony and that it was no part of the res gestae.

Bill No. 11 is in the same category as bill No. 10. However, the specific objection to fhe question propounded the witness, Ainsworth, was made and sustained by the court on the ground that it was a leading question. While Ainsworth was on the stand he was asked, on direct examination, “In whait manner were you notified that they (meaning defendants) were ready to go?” The district attorney objected on the ground that the question was leading as there had been no prior testimony from the witness to show that he was waiting on anyone or expecting any kind of invitation.

The trial judge, in his per curiam to this bill, states that he considered the objection well founded and that, even though his ruling be incorrect, the defendant has not been harmed for the reason that his counsel was subsequently permitted to bring out the facts sought to be established by the question, which facts were fully presented to the jury. We think that the statement in the per curiam furnishes an adequate answer to the complaint.

Bills of Exception 12 through 36 were all directed against the overruling of objections to various questions propounded by the district attorney to state witnesses in rebuttal primarily on the ground that the evidence sought to be elicited was not proper rebuttal evidence and that, in truth, the state was permitted to retry its case in chief after the defense was closed. Inasmuch as the objections of defense counsel were so varied and numerous,- it will expedite matters to re-group the bills so that those of the same quality and character may be considered as one in order to avoid repetition. However, before we do this, it is pertinent to examine the law and jurisprudence respecting rebuttal testimony.

Article 378 of the Code of Criminal Procedure grants the prosecution the right to rebut the evidence adduced by the defendant and Article 379 provides that, since the purpose of rebuttal evidence is to disprove, the district attorney should offer all of the testimony upon which he relies for conviction prior to the introduction of any evidence by the defendant “but the application of this rule must rest in the sound discretion of the trial judge.”

In the recent case of State v. Monroe, 205 La. 285, 17 So.2d 331, 332, we had occasion to define and apply the rules relative to the admission of evidence in rebuttal. There, we said:

“Rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party. State v. Hemler, 157 La. 902, 103 So. 257.
“It is rebuttal, not impeaching, to show that the statement of the witnesses as to what occurred is not true. State v. Foster, 150 La. 971, 91 So. 411. And contradiction' is one of the means of rebutting the testimony of a witness produced by -the defendant in a criminal prosecution as the State can not contradict the testimony of a witness for the defendant until the ■ testimony is offered in defendant’s behalf on the trial of the case. State v. Blount, 124 La. 202, 50 So. 12.”

With the foregoing principle in mind, we undertake a discussion of the numerous bills reserved by defense counsel to the rebuttal evidence adduced by the State. Bill No. 12 was taken under the following circumstances: After defendants had closed their evidence, the district attorney placed the prosecutrix on the stand in rebuttal and asked her “When you came out of the movie theatre, did you see Mr. Poe?” Counsel for defendant objected on the ground that the question called for testimony which was not properly rebuttal. The judge overruled the objection, being of the opinion that the evidence sought to be elicited was in rebuttal of testimony given by Poe — that he came out of the movie theatre immediately behind the prosecutrix, caught up with her within a few steps and walked along with her engaging in a conversation.

We think that the ruling was correct. The evidence was clearly admissible to contradict and disprove the testimony of Poe and the fact that the prosecutrix was examined in chief as a witness for the State “furnishes no reason for the exclusion” of her testimony “in rebuttal tending to specifically contradict statements made by defendant’s witnesses on their direct or cross-examination”. See State v. Monroe, supra.

The following bills of execution are on the same footing with bill No. 12 and need no separate treatment or discussion. Bill No. 13, whi-ch was taken to the overruling of an objection to the question “Where was he when you first saw him,” propounded to the prosecutrix; Bill No. 14, taken under the same circumstances -to the question “When was it he first got behind you and started following you”; Bill No. 15, pertaining to the question “Where was it that he caught up with you or got hold of you”; Bill No. 16, relating to the question “Was he following you from the picture show up to Clyde Russell’s”; Bill No. 17, referring to the question “Was anyone fob lowing you from the picture show up to Clyde Russell’s Store”; Bill No. 18, taken to the overruling of the question “ * * * just state again exactly your recollection of that conversation”; Bill No. 19, pertaining to the question “How long did that struggle take place at the gate”; Bill No. 24, reserved to the overruling of the question “After you got back down to the show, did you see Poe or Ainsworth”; Bill No. 25, directed against the overruling of the question “Where were you when you went down to the picture show at first”; Bill No. 26, respecting the question “Where was Miss Florence Bass when you talked to her”; Bill No. 27, relating to the question “Where did you go to the office, where is it?”; Bill No. 28, taken to the overruling of a general objection to the line of questions propounded to the prosecutrix and to her examination in rebuttal as a whole; Bill No. 29, taken to the overruling of the question “Are there lights there where you could have seen anybody coming in ?”; Bill No. 30, relative to the question “How many minutes did you consume standing there waiting on Miss Florence?” and Bill No. 36, taken to the overruling of an objection to the following question propounded to Mrs. Earl Mann, a rebuttal witness, “These parties, on direct examination by Mr. Parker, both of them several times stated that they told this on the stand exactly like they did at your house; is that true ?”

Counsel for defendant devotes much time 'and space in the brief to a discussion of the foregoing bills as a whole and, laying particular stress on the fact that the prosecu-trix had previously testified at length on the case in chief relative to matters about which she was questioned on rebuttal, charges that the prosecution was permitted to re-try its case after the defense was closed.

A careful examination of the bills of exception and the per curiams attached thereto has satisfied us that the accusation is not well founded. The fundamental error in the contention of counsel is that he fails to recognize the right of the State to recall a witness in rebuttal to give testimony in contradiction of defense evidence even though the witness has already testified in the case in chief about the same matters. State v. Monroe, supra. In such instances, it is necessary for the trial judge to determine whether the questions propounded on rebuttal are for purposes of repelling defense evidence or whether the State is merely attempting to cumulate its evidence in chief. That there are many cases where the line of demarkation is difficult to perceive is not to be doubted. The able and experienced drafters of our Code of Criminal Procedure well realized this and it was for that reason that it was provided in Article 379 of the Code that application of the rule respecting rebuttal evidence is a matter which “must rest in the sound discretion of the trial judge.” Far from showing an abuse of discretion, consideration of the judge’s per curiam to’ each of the numerous bills reveals a keen appreciation by him of the nature of the evidence sought to be adduced and a valid explanation for its admission.

Bill No. 20 was taken to the overruling of an objection to the following question propounded to the prosecutrix while she was on the stand in rebuttal— “When you had that struggle at the gate, and you were holding on to the gate and was trying to keep him from pulling you loose, as you have testified on direct examination, was there anything to obstruct your view of Ainsworth, or that might obstruct Ainsworth’s view of you?” The objection was based on the ground that the evidence was not proper rebuttal since the prosecutrix and Ainsworth had both previously testified that they saw one another.

For our part, we fail to see how the defendant, ' Poe, was prejudiced by the admission of the evidence. Obviously, the question was propounded solely in an effort to connect Ainsworth with the attempted kidnapping.

To the same effect is Bill No. 21, reserved to the overruling of an objection to the question “What did Ainsworth do< or say when you called to him for help?” and Bill No. 22 in which defense counsel asked that the jury be instructed not to consider the answer of the prosecutrix to the question propounded in Bill No. 21.

Bill No. 23, which was reserved to the overruling of the question propounded to the prosecutrix “How far and to where had Mr. Ainsworth proceeded when you were able to get away from Mr. Poe?” must be viewed in the same aspect as Bill Nos. 20, 21 and 22. The evidence sought to be adduced concerned only the defendant, Ainsworth, and could not have been prejudicial to Poe as he admittedly struggled with the prosecutrix.

Bill No. 31 relates to the testimony offered by Miss Florence Bass, a State witness, who had testified in, chief and was called in rebuttal to contradict Poe’s testimony that he left the movie theatre with the prosecutrix. She was asked, “Miss Florence, you stated this morning, or yesterday, that you saw Earline Mann when she left the movie on her way home?” Objection was made on the ground that the evidence to be elicited was not properly rebuttal. The judge thought otherwise and we find no error in his ruling for the reasons heretofore set forth.

In the same category is Bill No. 32, which was taken to the overruling of an objection to the following question propounded to Miss Florence Bass: “Will you give about what time had elapsed when these two events took place, and which happened first?” and Bill No. 33, pertaining to the question “Did you and Mrs. Plummer have any conversation there?”

While Sheriff Floyd was on the stand in rebuttal, he was asked by the district attorney “Mr. Floyd, you were outside the Mann house. Did you hear what conversation took place between Mr. Mann and these parties?” The same objection, that the testimony sought to be adduced was improper rebuttal, was made by defense counsel and, when it was overruled, Bill No. 34 was reserved.

The ruling was correct. The question propounded referred to a conversation between the father of the prosecutrix and the defendants and was merely introductory to the admission of additional evidence relative to the nature of the conversation in an effort by the State to contradict and repel evidence given by the defendants.

Bill No. 35 was taken to the overruling of an objection to the following question propounded to Sheriff Floyd in rebuttal: “Who swore out the affidavit?” The judge states in his per curiam that the question propounded concerned only the defendant, Ainsworth; that Ainsworth had contended that no charge was placed against him originally and that the State, to disprove his statement, was attempting to show that he and Poe had actually been charged in an affidavit at the same time. The ruling was correct.

While the district attorney was making his closing argument to the jury, he proclaimed “If these parties are such fine characters as Mr. Parker would lead you to believe, why then didn’t he put somebody on the stand to prove their character?” Upon objection of defense counsel, the judge immediately cautioned the district attorney to refrain from continuing with such an argument and instructed the jury to disregard any statements by either attorney, not borne out by the evidence. Notwithstanding this ruling, counsel reserved Bill No. 37, contending that the statement was so damaging and prejudicial that it could not be cured by instructions of the judge. An argument is made in this court to the same effect.

The proposition is not well founded. In the first place, the remarks of the district attorney were fair comment made in answer to the argument of defense counsel. Article 382 of the Code of Criminal Procedure declares:

“Counsel have the right to draw from the evidence received, or from the failure to produce evidence shown to be in the possession of the opposite party, any conclusion which to them may seem fit, but counsel have no right to draw from such evidence or suppression of evidence- an incorrect conclusion of law.”

But, apart from this, the remark cannot be regarded as prejudicial, as the judge promptly instructed the jury to disregard any statements of counsel not supported by evidence. It is well settled that a conviction will not be reversed because of the remarks of the district attorney which are provoked by opposing- counsel, particularly when the jury is properly instructed with respect thereto by the trial judge and there is nothing in the record to show that the jury was actually influenced by such remarks or that they contributed to the verdict returned by them. State v. Major, 134 La. 774, 64 So. 710; State v. Borde, 209 La. 905, 25 So.2d 736, citing State v. Tucker, 204 La. 463, 15 So.2d 854 and other cases.

Bill No. 38 was reserved to the action of the judge in limiting the argument before the jury to one hour and fifteen minutes for each side. The judge, in his per curiam, states that he granted defense counsel an additional fifteen minutes .and that counsel actually used only one hour and twenty minutes of the allotted time. It suffices to say that the bill. is frivolous.

Bills Nos. 40 and 41 were reserved to the overruling of motions for a new trial and in arrest of judgment. An examination of the motion for a new trial, in which counsel re-urges all of the bills of exception reserved during the proceedings, consists of an argument on the facts of the case. This, of course, presents nothing for review -as our jurisdiction in criminal cases is limited to a consideration of questions of law.

The motion in arrest of judgment is directed at the form in which the jury returned a verdict written on the back of the indictment. This is purely a captious objection which need not be discussed as it has not been pressed in this court.

The conviction and sentence are affirmed. The right of appellant to apply for a rehearing is reserved.

O’NIELL, C. J., and PONDER, J., dissent.

On Rehearing.

O’NIELL, Chief Justice

(dissenting).

A rehearing was granted in this case for the purpose of considering, mainly if not solely, the question whether the decision which we had rendered was contrary to the decision rendered in State v. Roberts, 213 La. 559, 35 So.2d 216, and the decision rendered in State v. Logan, 213 La. 451, 34 So.2d 921—or whether the decision rendered in this case was contrary to either of the decisions cited. After a reconsideration of the matter I find that the decision rendered in this case is not in conflict with either of the decisions cited.

In State v. Roberts, supra, the defendant was indicted for attempting to murder the party named in the indictment by shooting him with a pistol. The defendant was found guilty of aggravated battery and'on appeal contended that the verdict was not responsive to the charge of attempting to commit murder. We sustained the contention and set aside the verdict and sentence. The distinction between the Roberts Case and the present case is that in the Roberts Case the allegation in the indictment, as to how the attempt to commit murder was made, was not an essential allegation in an indictment for murder, or for the crime of attempting to commit murder, as defined in the law on the subject; whereas, in the present case, the allegation that the defendant “did wilfully and feloniously attempt to intentionally and forcibly seise and carry the person of * * * from one place to another without her consent,” was an essential allegation in charging the crime of attempted simple kidnapping, as defined in the first paragraph of section 45 of the Criminal Code, viz.:

“Simple kidnapping is:
“(1) The intentional and forcible seising and carrying of any person from one place to another without his consent.” (Italics supplied)

In State v. Logan, supra, the defendant was driving a motor truck, in which he had invited a woman to ride with him to a point at which she told him she intended to get out, but when the defendant reached that point and the woman asked to be allowed to get out, he increased his speed so as to -prevent her getting out. The court held that the speeding up of the truck when the woman asked to be allowed to get out was what constituted the crime of simple kidnapping. In that case there was no further forcible seizing of the defendant at the time when she got into the truck, or at any time previous to her arriving at her intended destination and asking the defendant to let her get out of the truck. In the present case, according to the plain and simple meaning of the words used in the statute and in the bill of information, the allegation that the defendant did wil-fully and feloniously attempt to intentionally and forcibly seize and carry the woman from one place to .another without her consent means that he committed an assault upon her, within the meaning of Article 36 of the Criminal Code.

In the prevailing opinion rendered on rehearing in the present case an example or illustration is given of a case in which it is said that the defendant might be guilty of attempted simple kidnapping without being guilty of committing an assault; but the example or illustration itself reveals that the defendant in such a case would not be guilty of attempted simple kidnapping, and hence, of course, could not be found guilty of committing an assault. The example is given in the prevailing opinion thus:

“A. B. intends to kidnap C. D. He entices her into his automobile by telling her that he will drive her to her home, his real intention being to seize and carry her away. Yet, before she is made aware of his ulterior motive, the automobile breaks down or he is arrested for violating a traffic law or something else happens which deters him from the accomplishment of his obj ect.
“Under such a state of facts, there could be no doubt that A. B. would be amenable to the charge of attempt, as defined by Article 27 of the Criminal Code —for, there are present the two elements necessary to constitute an attempt — (1) specific intent to commit simple kidnapping and (2) an overt act, i.e., the carrying of the girl in the automobile — an act which ‘tends directly towards the commission of the crime intended, and which will apparently result in its commission unless frustrated by extraneous circumstances.’ ”

I respectfully submit that in the illustration given in the prevailing opinion the word “attempt” is confused with the word “intend,” or “intent.” In the illustration there is a “specific intent to commit a crime,” as required by Article 27 of the Criminal Code, but there is no overt act which “ ‘tends directly towards the commission of the crime intended, and which will apparently result in its commission unless frustrated by extraneous circumstances’ ”; hence there is no attempt to commit the crime.

According to Article 27 of the Criminal Code, defining “attempt,” one of the essential elements of the crime is the doing of some act tending directly towards the accomplishment of the object intended, or the omission to do some act, the omission of which tends directly towards the accomplishment of the object. The article declares expressly that mere preparation to commit a crime shall not be sufficient to constitute an attempt.

My opinion therefore is that the judgment heretofore rendered in this case should be reinstated and made the final judgment of the court.

       Webster’s New International Dictionary defines “seizure” as the “act of seizing or state of being seized; sudden and forcible grasp or clutch; a taking into possession; as, the seizure of a thief, a throne, etc.”

       Article 33 of the Criminal Code defines a battery to be “the intentional use of force or violence upon the person of another * * * ” and Article 36 declares that an assault is an attempt to commit a battery.

       See comment under Article 27 of the Criminal Code with reference to the scope of the Article, the specific intent necessary and the overt act; also the numerous authorities cited therein.

       Article,333 requires an opening statement by the district attorney “explain'ing the nature of the charge and the evidence by which he expects to establish the same”

       To the same effect see Marr’s Criminal Jurisprudence of .Louisiana, -Section 633, page 966.