author: ELLIS, Judge.

text:
    DUNN et al. v. TEXAS & N. O. R. CO.
    No. 3207.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Joe J. Tritico, Lake Charles, for appellants.
    Thos F. Porter, Lake Charles, Thos L. Raggio, Lake Charles, for appellee.
   ELLIS, Judge.

This is a suit for damages filed by the plaintiffs, William F. Dunn, Jr. and Leslie Conrad, as the result of a collision 'between a 1940 Ford convertible automobile owned and being driven by Conrad and in which Dunn was the guest passenger, and an alleged tank car, property of the defendant railroad company. The plaintiffs allege in their petition that on or about the 29th day of November 1947 at approximately 1:30 o’clock A.M. plaintiff Conrad was driving his Ford convertible automobile in a northerly direction along a public road known as the Lake Charies-West Lake Road; that the defendant’s railroad tracks consist of a main line track running east and west, a house track north of the main line, and a passing track south of the main line, forming a railroad crossing across the highway at the south edge of the town of West Lake, Louisiana in Calcasieu Parish; that as the plaintiff Conrad was driving northward and approaching this crossing, he brought his automobile to a stop, looked for the electric signal and listened for the bell warning of the approach or presence of trains or cars on said tracks, looked to the west to discover if any trains were approaching from that direction, then started across the railroad crossing and their vehicle suddenly approached and struck a stationary freight or tank car on defendant’s crossing which had been left there by defendant, its agents, servants or employees.

Defendants answered the suit denying any negligence and specifically alleged contributory negligence on the part of defendants.

There was judgment in the District Court in favor of the defendants and against both plaintiffs, dismissing their suit at their cost, from which judgments the plaintiffs have appealed.

It is the contention of the plaintiffs that on the morning of November 29, 1947 at about 1:30 o’clock A.M. they ran into a railroad car which they believe was a tank car which had been left on the track south of the main track, which will be hereafter referred to as the passing track, and that this car had been placed by the employees of the defendant company in such position on this track that the west end of the tank car protruded into the east lane of traffic on this roadway, and that the plaintiffs’ car ran into this tank car and, therefore, the accident took place in the passing track.

The defendants contend that the accident took place on the main line when the plaintiffs drove their automobile into a tank car which was across the highway and formed part of an 18 car train which had stopped in West Lake in order to do some switching, and that at the time of the accident the signal lights were burning and the bells ringing and that the accident occurred around 2:00 o’clock A.M.

The District ’Court in its written reasons propounded the proper questions necessary to a correct decision, and analyzed the case along those lines, which were stated as follows:

1. Was the object the plaintiffs ran into with their automobile on the passing track or on the main 'line at the time of the accident ?

2. At what time did the accident occur?

3. Were the signal lights burning and bells ringing at the time of this accident?

The evidence in this case shows that early in the night the plaintiffs, who were both veterans of World War II and members of the Veterans of Foreign Wars, had been practicing basketball at a gymnasium in West Lake, Louisiana until approximately 10:00 P.M., and that being members of a committee to secure a band for a dance of the V.F.W., they left the gymnasium and proceeded to a night club called the “Yukon Club” where they were to meet someone with regard to securing a band. Being unsuccessful in their mission, they left the “Yukon Club” and went to the “Silver Star”, another night club, stayed there awhile and being unsuccessful left there and their last stop was at the “Manhatten Night 'Club,” which they say they left a little before or after 1:00 o’clock A.M., and they then proceeded on their way to West Lake which is a black topped road after leaving Highway 90. The plaintiffs as well as many other witnesses offered on their behalf testified that it was a foggy night, that they could see from 10 to 30 feet, and that the fog, of course, was thicker in the low places. We are not inclined to believe that there was quite as much fog as the plaintiffs and their witnesses contend, taking into consideration the testimony of somé disinterested witnesses in the case, that is, the two young men who testified on behalf of the defendant that they witnessed the collision and testified that they were able to see the train parked across the crossing without any trouble at a distance of 200 feet, and the fact that trainmen a distance of 14 or 15 car lengths, from 500 to 545 feet away, clearly saw the stop signal given by the switchman with his lantern. Be this as it may, we do not think it is too material to a decision in this case.

The plaintiffs further testified that the accident occurred at approximately 1:30 o’clock A.M. which, if true, would eliminate the defendant’s contention that it happened on the main line for the train which was occupying the main line at the time of the collision did not reach West Lake until slightly 'before 2:00 A'.M. It is proven by the plaintiffs that there was a tank car parked on the north or house track which protruded into the highway. However, as stated by the District Court, this fact is more or less immaterial as it is well established that the warning signals do not work for this track and it is not contended that the plaintiffs ran into this car, although it could be considered as tending to prove that if the railroad company carelessly and negligently left this car protruding into the highway on the north track, they might have been careless and negligent and left one protruding on the south trade. The fact that this car protruded in the highway is admitted by one of the defendant’s witnesses who was one of the train crew on that night. If the members of the train crew were going to willfully falsify on the trial of the case, this witness would not have admitted this obstruction on the north track. We do not believe that any of them testified falsely. In fact, all of the testimony can be reconciled except on the question as to the time the accident occurred.

Admitting for the sake of argument that it has been established by the plaintiff that the defendant company had so placed and left a tank car on the passing track that it protruded into the east lane of traffic from one to “four to six feet” as testified by a number of witnesses offered on behalf of plaintiff, this testimony of itself might lead to the conclusion that by reason of the tank car’s position it could have been the one with which the plaintiffs collided. Such proof alone would not be sufficient to establish the plaintiffs’ case, but the plaintiff then contends that in addition to the established fact that there was a car protruding in the highway on the passing track that there are certain physical facts testified to as having been found south of the passing track which definitely establish the collision as having taken place with this tank car protruding into the highway on the passing track.

It was testified 'by a mechanic employed by Bourlon’s garage of Lake Charles that he went to the scene of the accident between three and five o’clock A.M. in order to pick up plaintiff’s wrecked automobile; that he found this automobile located “between ten and twenty feet sitting off of the railroad track off to the left side of the road.” The railroad track referred to by this witness was the passing track. He was asked, “Did you have occasion to ’notice anything that was immediately south of the first track that you approached coming from a southerly direction?” The witness answered, “Well, about all I noticed was a little dirt and glass scattered around between the car and the track.”

In addition to the mechanic’s testimony on thi-s point, the plaintiff offered the testimony of an employee of the Magnolia Petroleum Corporation who was also a Deputy Sheriff, who made an investigation the next day and testified that he saw some oil, dirt and glass within two feet south of the passing track, also the remains of a car headlight as well as a piece of grill, the latter being six feet 'south of the passing trade, and that he did not notice any debris north of the passing track. He also stated that he found skid marks about four feet in length south of the passing track.

Also, plaintiffs offered the testimony of State Trooper Simon who testified that the wrecked car was four or five feet south of the passing track, facing north and just slightly to the left of the center of the road, and that he noticed no debris or tire tracks between the south track and, the main track but that broken glass and oil were “right there,” meaning, as we understand, right where the car was located as stated above. He further testified that he saw no tire marks.

Sidney Broussard, the other State Trooper who was with Trooper Simon, testified that he did not know upon which track the collision took place but that the plaintiff’s wrecked automobile “was sitting on the west side of the highway, half on the shoulder and half on the west lane.”

Another witness on behalf of the plaintiff testified that he arrived at the scene approximately five minutes after two o’clock and that the wrecked automobile was facing north, south of the passing track, and it was just about in the center of the road. He also testified that he was unable to push the car off of the highway with a pick up truck, that it would not move.

Testimony was offered by the plaintiffs to prove that the accident occurred at approximately 1:30 A.M. or at least prior to the time that the 18 car train, which included the tank car that the defendant contends was the one with which the plaintiff’s automobile collided, reached West Lake. The plaintiffs fixed the time at approximately 1:30 A.M. and offered the testimony of a nurse, to the effect that she made emergency reports when the plaintiffs were admitted to St. Patrick’s Hospital in Lake Charles and that it is shown on these reports that the plaintiffs were admitted to the emergency room at 2:00 o’clock A.M., which would have been impossible had the accident happened at the time fixed "by the witnesses for the defendant. We have not referred to the doctors’ testimony as to their idea of the time they saw the plaintiffs in St. Patrick’s Hospital for it is totally misleading, being only an idea or an estimate which is shown by positive testimony of plaintiffs’ and defendant’s witnesses to be in error. Plaintiffs further rely upon the testimony of a taxi ca'b driver of West Lake, that the wrecked automobile was facing north, south of the passing track, and also the testimony of a passenger in the taxi cab which was returning to West Lake at approximately 2:30 o’clock • A.M. and who stated that she saw plaintiff’s wrecked car south of the passing track “on the side of the road” and “on the west side” of the road.

The above is a resume of the testimony depended upon by the plaintiffs that the collision occurred on the passing track.

On the other hand, the defendants show that a train crew of six men, viz., the engineer, fireman, engine switchman, switch-man, car inspector, and engine foreman in charge, reported for duty beginning at 11:40 P.M. on November 28, 1947. These men were in charge of a train composed of the engine, tender, and 18 cars, which was to leave Lake Charles, go to West Lake, pick up more cars and then go on to a place known as Rose Bluff where the defendant company interchanged cars with the K. C. S. Railroad. The evidence of the train crew is to the effect that they left Lake Charles between 1:45 and 1:50 A.M. on the morning of the accident and that it took them from five to ten minutes to make the trip from Lake 'Charles to West Lake; that upon their arrival there the train was stopped so that the tank car, which they testified was the one with which the plaintiffs collided, being- UTLX-43584, was squarely across the road, with two. or three other cars of the train to the east of the highway. It is further shown that they were stopped on the main line for a period of from three to eight minutes prior to the collision, which, if they left at 1:45 A.M. would put the train across the crossing where the accident occurred at 1:55 A. m., and taking the shortest period of time, three minutes, would make the exact time of the accident at 1:58 o’clock A.M. Of course, if we take 1:50 A.M. as the time of the departure from Lake Charles, the accident would have 'been at three minutes past two, and if we take the longer period of time estimated that they were stopped prior to the accident, or eight minutes instead o-f three minutes, the accident would have happened at 2:08 o’clock A.M. In any event, the estimates given by the train crew were to the effect that this accident occurred within from 1:55 A.M. to 2:15 A.M. Taking the most favorable time of 1:55 A.M., it would have been impossible for an ambulance to have come from Lake Charles, a distance of five miles, and to have picked up the plaintiffs and taken them back to Lake -Charles to St. Patrick’s Hospital in five minutes or by 2:00 o’clock, the time the nurse testified they arrived at the hospital. We believe from all the pertinent testimony on this particular point that the nurse was in error.

There is no doubt that this 18 car train was stopped on the main line with two cars extending east of the .crossing, and the tank car identified by the number given above having its wheels • on the west end of the car at the edge of the west end of the highway, and the wheels of the east end of the -car at the east side of the highway, and the coupling between it and a car to the east at or near the edge of the highway. It is shown that the switchman, who rode over on the rear end -of the last or eighteenth car, was walking toward the crossing between the main line and the passing track, a distance of approximately 54 feet from the crossing, when he heard the automobile run into the tank car. He did not see it as there were cars to the south of him on the passing track, the direction in which the car was coming. He immediately, as he was walking toward the crossing, flagged a stop signal to the engineer, and upon seeing that the occupants of the car were injured, he turned, crossed between the car-s on the main track and went to the depot which was approximately 8 or 10 feet to the north of the main track and phoned for an ambulance. The engineer stopped the engine, which had only gotten a -car’s length further to the west as it had been uncoupled to go into the passing track to pull out some cars that had been previously placed there. The members of the train crew testified ■that the cars which were parked on the passing track were all we-st of the road and without the area, or a distance of more than 30 feet, that would cause the warning signals to operate. The switchman was approximately 13 or 14 car lengths from the engine at the time he gave the signal which was plainly seen and acted upon. The engine foreman in -charge of the train, immediately came to the crossing and the switchman returned from the depot at about the same time and heard him asking the plaintiff Dunn, who had just been helped out of the car by two young men, Knepper and Hindman, if he couldn’t have seen those signals working. Both testified that Dunn said he had not noticed and apparently the driver hadn’t noticed the warning signals, either.

As there was a train that left Lake •Charles at 2:40 A.M., it was necessary that the main line be cleared by the switch train by 2:35 A.M. and -for this reason the members of the train crew were anxious to get the automobile moved from under the tank car. The two young men, Knepper and Hindman, who appeared at the wrecked automobile immediately after the collision and who were there at the time the engine foreman got to the crossing, and when the switchman returned from the depot, testified that they were employed by the Nelson Truck Lines -of Lake Charles -but on that night were working in the marsh back of West Lake in connection with the laying of a pipe line, and that as they were due in Lake Charles at 3:00 o’clock A.M. to make a trip for their regular employer to Alex-anclria, they had left the marsh at approximately 1:45, which would put them at the railroad station or crossing' at close to 2:00 o’clock A.M., and it was their opinion that the accident happened around 2:00 o’clock or shortly thereafter; that when they were within approximately 200 feet of the crossing they clearly saw that it was blocked by the train, whereupon the car was driven to within 10 or 20 feet of the crossing and stopped with its parking lights on to wait until the train moved. It was while so parked that they noticed the lights of the car loom up some 150 feet south of tire crossing on the black topped road. As the main line was raised, they could see the plaintiffs’ car approaching underneath the tank car, and when it was within about 50 feet they could see the front part of the car. It is their testimony that the plaintiffs’ car was going at a moderate speed but that it did not slow down and struck the tank car approximately in the center of the road. Within a matter of seconds or as soon as they could recover their wits, they went to the east side of the highway and climbed between the car which the plaintiff struck and the car coupled to it to the east. When they got there there was no one in the car except the plaintiffs, both of whom were inside the car. The switchman had merely gone to the car and glanced in and left to make the phone call for the ambulance prior to the time these two witnesses arrived.

In order to move the plaintiffs’ car from under the tank car, the witness Knepper agreed to bring his car around from the north side and pull plaintiffs’ car out, but at the time he arrived with his car, some members of the train crew, together with the witness Hindman, had pushed the car from under the tank car and south of the passing track and to the left side of the road. However, a portion of the car must have still been in the west or south bound traffic lane as the driver of the ambulance particularly asked the two young men to try and get the car completely off of the highway so that no one else would run into it. This was later attempted with the pick-up truck but it was unable to move the car. It was shown that it did back up and bump the car several times in an effort to move it and if there was anything broken or loose on the car it certainly seems that it would have fallen from the car to the ground at that time. It was also testified by Knepper that Dunn, one of the plaintiffs, called him two or three weeks after the accident and asked him about it and he told him what he knew. This is not disputed and we can only presume that he told him at that time what he testified, to, else Dunn would certainly 'have testified to that effect.

Knepper testified that he did not remember whether the warning signals were working or not when he drove up and parked at the crossing; that he had had no trouble in seeing the tank car on the crossing at quite a distance and just couldn’t remember seeing or hearing the signals. The other witness, Hindman, who was in the car with him, clearly remembered the red lights working hut did not remember whether or not the bell was ringing.

Another member of the train crew who saw the wrecked automobile of plaintiff against the tank car approximately in the center of t'he road was the engine switch-man who testified also that there was some dirt and glass on the ground where the automobile struck the tank car. The switchman also testified that he saw some glass in the road at the point of collision, as did the car inspector who inspected the tank car to see what damage had been done to it.

In order to hold that the plaintiff’s automobile did not strike the tank car on the main track we must say that six members of this train crew and the two purely disinterested witnesses, Knepper and Hind-man, who actually saw plaintiff’s car when it ran into the tank car at a distance of from 10 or 20 feet and who knew the plaintiff Dunn, were all unmitigated falsifiers. There is no reason to believe such, in fact, their testimony is stamped with truthfulness and is not in conflict on any material point with the testimony of plaintiffs’ witnesses, for it must be remembered that no witness for plaintiffs testified, other than the plaintiffs themselves, as to where this accident actually happened or that they saw it. The plaintiffs’ memory of the accident is hazy and justly so, as 'both were injured to such an extent that it would be reasonable that their memory from the time of the actual collision of what happened would not be too good.

The members of the train crew all testified that the lights were working, and the remark which the engine foreman testified he made to Dunn with regard to the lights and bells and why he couldn’t see them, at the same time pointing to them, was most natural and is not subsequently thought of testimony.

Plaintiff’s contention that the accident happened on the passing track must yield to the positive eye witness testimony of the witnesses for the defendant. Therefore, we conclude that the accident happened on the main line and not on the passing track.

As to the physical facts which counsel for plaintiff contends contradict defendant’s positive testimony, we are of the opinion that this car was definitely pushed from under the tank car on the main crossing, south along said highway and south of the passing track with part of the car on the shoulder and part in the west or south bound traffic lane and facing north. We believe that when this car was pushed that this dirt, glass, oil, etc. south of the passing track was at that time dislodged. Certainly, the collision would not have occurred at the point the witnesses located the wrecked automobile south of the passing track or at the point where the debris was found 'between the car and the passing track. We say this for the simple reason that the theory of plaintiff’s case is that a car on the passing track protruded in the east or north bound lane of traffic a distance of from one to, say, six feet, and that the plaintiffs struck this car. The position of the wrecked car as testified to ■by the various witnesses varied. Some testified it was approximately in the center of the road but the majority testified that it was to the left of the center of the road. All placed the debris immediately in front of the car and between the car and the passing track. We believe from the testimony that the car was partly on the shoulder and partly on the highway to the west, facing north. Let us assume that they struck a car protruding one foot in the highway - on the passing track. There is no explanation given or attempted as to how this car then could have gotten across the center of the highway, slightly to the south of the passing track, facing in a northerly direction with the debris in front of it and no debris where it struck the protruding car. Assuming that the car protruded six feet into the 'highway, still the position of the wrecked car and the debris is entirely inconsistent. The physical facts fit in with the positive testimony of the crew members and with Knepper and Hind-man that they pushed this car from under the tank car on the main line, south across the passing track and slightly to the west side of the road. For the car to have struck a tank car on the passing track which protruded 1 or 6 feet into the east lane of traffic and to have come to rest from distances estimated by the witnesses at 4 to 20 feet south of the south line of the passing track, it would have had to travel at right angles to the point of impact or at least sideways in a southwesterly direction, when at the time it was travel-ling in a northerly or slightly northwesterly direction. In other words, we cannot see how it could have been possible for the plaintiff’s car to have collided with a tank car on the passing track as contended by the plaintiffs, and then come to rest almost directly across the road and a distance of 4 to 20 feet south of the south line of the passing track.

We are unable to reconcile the fact that defendant’s witnesses moved this car by pushing it after the collision although the pick-up truck could not do so. Of course, it is possible that the automobile was put in gear after it had been pushed to this point and no one thought to take it out at the time the truck was pushing on it, or it could be that the emergency brake had been pulled up on the car if it had one, or that the front wheel had rolled that far and given way. There is no testimony to explain it but we do not doubt the positive testimony to the effect that it was moved to its final resting place south of the passing track by two of the trainmen and the witness Hindman, and a small amount of assistance was given by the witness Knepper who saw them pushing the car.

As to the hospital record made by the nurse that the plaintiffs were admitted in the hospital at 2:00 o’clock, we agree with the trial judge that the time given is inaccurate, and it could not ‘be accurate in the face of the positive testimony that the accident happened on the main line and was seen by eye witnesses whose testimony as to the time the collision occurred of necessity renders the time as recorded by the nurse inaccurate.

As to whether the lights were working at the time of the accident, we have the testimony of witnesses for the plaintiff that they had, on many occasions, seen a car on the passing track within the area which should have caused the lights to flash on and the bells to ring and that neither the lights nor the bells worked. It was also testified to ¡by many witnesses for the plaintiff, and positively so, that on January 12, before the trial ended, that a car had 'been left on the passing track within 18 feet of the highway and that the lights failed to flash and the bells failed to ring. The distance for the lights and bells to work was within 30 feet of the highway. They further testified that a train came by on the main line at the time they saw this car within 18 feet of the crossing on the passing track and that the warning signals all came on and worked but that it was not until a switchman of the defendant company threw the switch that they began to work for the passing track.

The plaintiffs offered no testimony by any witness that they ever saw the warning signals fail to work when a train approached on the main line and got within the area within which they were supposed to operate. The only testimony to this effect in behalf of the plaintiffs was the testimony given by the plaintiffs themselves that on the night of the accident they did not see any lights or hear any bells. While we are accepting the testimony of plaintiffs’ witnesses as given with regard to cars parked upon the passing track, still I would say that the plaintiff has not proved in the face of other testimony that the signals were not working on the night of the accident when the plaintiffs’ automobile struck the tank car on the main line. We have the positive testimony of the members of the train crew that the signals were working, as well as the testimony of the witness Hindman that the lights were working and of the taxi cab driver that he heard the bill ringing on the night of the accident and the testimony of the mechanic who picked up the wrecked car between 3:00 and 5:00 A.M. that while he was there a train passed on the main line and the lights flashed and the ball rang, and in the absence of any testimony of any witness that they ever knew of the failure of the lights to flash or bell to ring when a train passed on the main line, we take it as proven that the warning signals were working on the night of the accident and that Conrad, the driver of the car, as well as Dunn, the passenger, should have seen these lights. We are of the opinion that it was not so foggy that they could not see the warning lights flashing and their •failure to do so and their failure to use even ordinary care in proceeding across the track bars the plaintiffs from recovery.

It is accordingly ordered that the judgment of the District Court be affirmed.

J. CLEVELAND FRUGE, J., sitting ad hoc.


source: Caselaw Access Project

author: FRUGE, Judge ad hoc.

license: Public Domain

text:
    ZIMMERMAN et al. v. DELAFIELD.
    No. 3209.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Kaufman, Anderson & Leithead, Lake Charles, for appellants.
    Plauche & S.tockwell, Lake Charles, for appellee.
   FRUGE, Judge ad hoc.

This is a suit by Mrs. Lucille L. Zimmer-mann and her husband, Paul A. Zimmer-mann, against W. B. Delafield, wherein they seek to recover rent for the use and occupancy by the defendant, W. B. Delafield, of Lot No. 16 of Block No. 2 of the Broadway Sub-division in the City of Lake Charles, Louisiana, for a period beginning February 12, 1948, and up to and including November 12, 1948.

The plaintiffs’ suit is based on their right to recover under quantum meruit since there was admittedly no written or verbal lease, and contend that $25.00 per month is a fair rental value for the property.

The defendant admits that Lot No. 16 of Block No. 2 of the Broadway Sub-division is owned by plaintiffs and that he used and occupied same between February 12, 1948, and November 12, 1948, and paid no rent. However, after suit was filed, but before trial, defendant tendered $100.00 and costs, which tender was for rent at the rate of $11.11 per month for the period of nine months, which he contends is a fair rental for said property.

Lot No. 16, the property in question, is an unimproved lot located in Block No. 3 of the Broadway Sub-division in the City of Lake Charles, Louisiana, Block No. 3 of said sub-division is bounded on the North by Broad Street, which is the main and only paved highway leading out of the City of Lake Charles to the East; South by First Avenue; Fifth Avenue on the East and Fourth Avenue on the West. However, the lot in question does not bound on Broad Street but is adjacent to and enjoins property fronting on Broad Street owned by plaintiffs and property owned by defendant. The lot in dispute would have a frontage south on First Avenue, which is a block south of Broad Street, but there is a drainage ditch running in an easterly and westerly direction across the south end of said lot, thereby depriving it of frontage on said street.

The only question at issue is what is a fair rental for the property used and occupied by the defendant. The lower court found that the defendant, W. B. Delafield, should pay $20.00 per month for his unauthorized use of the property which totals $180.00 plus interest at the rate of five per cent per annum from judicial demand. Defendant appeals.

This court has carefully read the record and although there is some variance and conflict between the testimony of witnesses for plaintiff and defendant, it is of the opinion that the lower court’s judgment should not be disturbed.

Mathews v. Priest, La.App.1936, 165 So. 535, “Trial court’s findings of fact made .on conflicting testimony will not be disturbed where not manifestly wrong.”

Reeves v. Clark, La.App.1944, 18 So.2d 223, “Where evidence is conflicting and confusing, great weight must be given to findings of trial judge.”

Paquet v. Renken, La.App.1947, 30 So.2d 218, “The trial judge’s finding on disputed facts if not manifestly erroneous cannot be disturbed.”

Sparks v. Dan Cohen Co., 1937, 187 La. 830, 175 So. 590, “The determination of a trial judge as to rental value of property would not be disturbed on appeal, although the testimony or estimates might have justified a greater allowance, since trial judge was in better position to make such determination.”

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


text:
    SONNIER v. BROUSSARD.
    No. 3176.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Paul C. Reed, Ville Platte, for appellant.
    Atlee P. Steckler, Ville Platte, for appel-lee.
   ELLIS, Judge.

This suit involves a collision between an automobile owned by the plaintiff and driven by his brother and one owned and being operated by the defendant on or about October 18, 1947 between eight and nine o’clock A.M. in which the plaintiff prays for judgment against the defendant for the sum of $600.00 with legal interest and all costs and in which the defendant has filed a reconventional demand representing damages alleged to have been caused to his automobile in the sum of $256.07. Plaintiff alleged that his brother was driving his automobile on a mission for him on a gravel road leading from Eunice, Louisiana to Basile, Louisiana in a northerly direction, and that the defendant was traveling on the same highway in the same direction and to his rear; that he attempted to pass the plaintiff’s car and cut over too short in his operation to clear plaintiff’s car and caught the “back fender of petitioner’s automobile, scraped, tore the door and side of petitioner’s automobile.”

The defendant denied all material allegations and plead contributory negligence on the part of the plaintiff. Defendant charged plaintiff with not keeping a lookout for vehicles traveling behind him, and that as he approached plaintiffs car from the rear, the driver of plaintiff’s car was on his proper lane of travel but just as defendant started to pass, the driver of plaintiffs automobile turned suddenly to his left into the lane reserved for passing. As a result of this careless and negligent act, the defendant was forced to cut his car further to the left but in spite of every effort on his part he was unable to prevent striking “the left front fender of plaintiff’s automobile with the right front of respondent’s automobile.

The case was duly tried and there was judgment in favor of the plaintiff in the full sum of $271.79 with legal interest thereon from judicial demand until paid and all costs, and the reconventional demand of the defendant was denied and dismissed.

From this judgment the defendant has appealed and the plaintiff has answered the appeal in which he prays that the judgment of the District Court be amended so as to increase the amount of the award to the sum of $600.00 with interest and costs as prayed for, and as thus amended the judgment be affirmed.

The evidence revealed that on the day of the accident, the plaintiff was butchering a beef for a community butchery at his home and that he sent his brother, Burley Sonnier, in his automobile to the town of Basile, Louisiana to get bread which he had done, and also had picked up some clothes which had been placed or were hanging near the rear seat of the car. He was accompanied on this trip by two cousins, namely, Collins and George Jenkins. The testimony of these two cousins, as well as Sonnier, is to the effect that while driving at about 30 miles per hour on their proper side of the road plaintiff’s 1941 Mercury was struck from the rear by the 1941 Ford sedan of the defendant. It was their testimony that the defendant’s car struck plaintiff’s rear left fender, scraped the left side of his car all the way to the front and seriously damaged the left front fender and front wheel and that the collision caused plaintiff’s car to immediately stop on the road and that defendant’s car turned to its left and ended up on its side in the left ditch of the road going north. The defendant’s automobile was occupied by himself, his wife and his 16 year old son, all of whom were sitting on the front seat. Defendant testified, and it is corroborated by his wife and son, that he was driving behind plaintiff’s car just prior to the accident and that it was being operated on the left or improper side of the road; that when he was approximately 150 yards of the plaintiff’s car he blew his horn, whereupon the driver of plaintiff’s car moved over to his right or proper lane of tráffic, and that defendant, after following plaintiff’s car for about 150 yards and when the dust cleared some, as this was a gravel road with two well-packed lanes on the north and south side and loose gravel in the middle, attempted to pass plaintiff’s car without any further warning signal such as blowing his horn; that when he had reached about 25 feet from plaintiff’s car and when traveling approximately 35 or 40 miles per hour, the plaintiff’s car turned sharply to the left in his path and that it was too late for him to then blow his horn or apply his brakes; that all he could do was steer his car to the left in an attempt to avoid a collision, but that the right front fender of his automobile struck the left front fender of plaintiff’s automobile which had a tendency to knock the front end of plaintiff’s automobile back to its right, and as a result of the front end of both automobiles going in opposite directions, the rear ends and main part of the bodies of the two cars collided.

The trial judge, in addition to the failure of the defendant to blow his horn or give any warning that he intended to pass plaintiff’s automobile, found that the plaintiff’s car came to rest approximately two feet to the left of the center line of the highway which would be in its improper lane of traffic, but stated that even if that be true, the highway was 38 feet in width and, therefore, the defendant had a distance of 17 feet to the left of plaintiff’s car which he could have used to avoid the collision had he not been going at an excessive speed under the circumstances, and that it “was the duty of the defendant to keep his car under control and to go around plaintiff’s car far enough so as to avoid any possibility of collision. There is not the least doubt that this collision occurred to the left of the center line of the highway in the passing lane of traffic as testified to by the defendant.

The driver of the plaintiff’s car and his two cousins, who were passengers with him, all testified that the defendant struck the rear of their car while it was driving on its proper right hand side of the road. It was testified by the defendant, his wife atid son, that the car was struck first at the left front fender as it swerved across the center line of the highway, into the left or south bound traffic lane, and that after the accident it came to rest parallel to the center line with its left side and wheels approximate^ two feet to the left of the center line of the highway.

The lower court accepted the testimony of a witness by the name of Linus Bertrand, who was known to the court and whom the court stated appeared disinterested. This witness, together with a man named Miller, were the first to reach the scene of the accident. At the time of the collision they were approximately 150 yards away. This witness placed the plaintiff’s car after the accident as sitting parallel to the side of the road with approximately two feet of the left hand side of the car across the center line of the highway. This witness’ testimony is corroborative of that of defendant, his wife and son as to the position of the plaintiff’s automobile after the wreck. The other witness, Miller, was summoned by the plaintiff but not put on the stand, although he was in the Court Room and the plaintiff talked to him a few minutes prior to the closing of the testimony. Therefore, it cannot be presumed that his testimony would have been favorable to the plaintiff, in fact, it must be presumed that it would have been unfavorable.

The defendant is further corroborated in his version of the manner in which this collision occurred by the mechanic who made an estimate of plaintiff’s car and who testified “that the impact was right at the cow (cowl) which is the rear part of the front between the fender and the door,” referring to the left side of plaintiff’s car, and that the damage to the plaintiff’s car along the side and to the rear could have been caused when plaintiff’s car kicked back after the wreck.

This conclusively proves that at the time the main damage was done just to the rear of the left front fender that the front end of plaintiff’s car was farther to the left than the rear end of plaintiff’s car. This fender was so badly damaged it had to be replaced with a new one, while the left rear fender of plaintiff’s car only had to be straightened out. It is reasonable from the physical facts, if we accept the testimony of Eddie Brown which is undisputed in the record and, in fact, corroborated, that the main blow was to the left front fender of plaintiff’s car; that when the blow occurred the defendant was attempting to pull to his left in order to avoid the accident which would cause the body of his car and the rear end to swing to its right and the force of the blow to the front end of plaintiff’s car- would cause the body and rear of his car to swing to its left, thus causing the rear ends and main portion of the bodies of the two automobiles to come together causing the damage to the rear fender and left side of the plaintiff’s car and the damage to defendant’s car.

We also find in the record that after the accident a deputy sheriff came to the scene but did not want to participate, that is, take any sides apparently, so he called in a State Trooper by the name of Hebert whom the plaintiff reserved the right prior to the beginning of the taking of testimony to call at a further date if necessary. This witness was never called, however, Sonnier, the driver of plaintiff’s car referred to this trooper in his testimony. He stated that, “He did not want to tell me I was on my side.” It is clear that the trooper must not have thought that Sonnier was on his side of the road, and the failure of the plaintiff to call the trooper at least leaves this statement uncontradicted in the record and is corroborative of defendant’s account of the accident.

Immediately after the accident the defendant and the occupants of plaintiff’s car engaged in quite a bit of conversation all of which revolved around the question as to why the driver of plaintiff’s car suddenly swerved across the road at the time defendant attempted to pass him, thereby causing the collision. In attempting to find the reason for such action on the part of the operator of plaintiff’s automobile it was stated that plaintiff’s automobile had a flat tire and the driver of plaintiff’s car said: “I guess that is what pulled me to the side.” The driver of the car also statr ed in this conversation that at the time it happened he was telling the boy in the back to be careful about his clothes he had just got back from the cleaners. Nowhere in the conversation immediately after the wreck or any other time did the driver or operator of plaintiff’s car accuse the defendant of running into the rear end of their car while they were driving in their proper lane of traffic. Certainly, this should have been their first reaction rather than to entirely talk about what caused plaintiff’s car to swerve to the left. It would have been natural for them to accuse defendant of having struck them in the rear as they contend rather than for the entire conversation to be an inquiry by the defendant and occupants of plaintiff’s car as to why the plaintiff’s car swerved suddenly across the road.

Therefore, we conclude that this accident occurred as contended by the defendant and was caused by the plaintiff negligently swerving suddenly to his left in the path of the defendant’s passing car and negligently loosing control of his car to the extent that it suddenly veered into the opposite lane of traffic, and as the defendant at this moment was only a distance of approximately 25 feet from plaintiff’s car it was then too late to blow his horn or apply his brakes, and that under the circumstances, the only action which the defendant could take was to steer his car further to the left in an attempt to avoid a collision.

The only question remaining is whether or not the sole and only cause of the accident was the negligence of the driver of plaintiff’s automobile and, if so, the recon-ventional demand of the defendant should be granted.

It would seem that the only possible negligence on the part of the defendant Brous-sard would have been his failure to blow his horn immediately before passing the Sonnier car. As stated, he had blown his horn and when the driver of plaintiff’s car steered his car back into the right or proper lane of traffic it was only natural that the defendant should have assumed that the plaintiff heard this warning signal.

In the case of De La Vergne v. Employers Liability Assurance Corporation, Ltd., 4 So.2d 66, 69, decided by this Court, a situation similar to the case at bar was involved where the motorist approaching from the rear attempted to pass the motorist in front and failed to blow his horn, and from that case we quote:

“With regard to his failure to blow the horn of his car, in view of the situation which presented itself, the question that is suggested is whether the sounding of the horn was necessary and also whether it would have served to avoid the accident.. Mrs. Thompson’s car was, up to the moment of her sudden attempted turn, on its right-hand side of the road, leaving plaintiff the usual necessary space on her left to pass ahead of her. Had she given him the least idea of her intention to make the turn, or had her car obstructed the clearance of his lane of travel on the left in the least, it would then have been imperative for him to sound the horn of his car and indicate to her that he intended to overtake her. The purpose of the law in requiring the giving of an audible warning by the overtaking vehicle, as we view it, is to favor its driver to the extent that his normal progress on the highway will not be unnecessarily impeded by the driver of' the car preceding him in not leaving or giving him sufficient clearance in which to. pass ahead.”

In the case of Great American Insurance Company v. New Amsterdam Casualty Company et al., 15 So.2d 241, also decided by this Court, in which the facts showed that a motor bike was traveling on its right hand side and that a motorist in the rear attempted to pass the motor bike without blowing his horn thereby striking it in the passing lane when obviously the driver of the motor bike had crossed over without warning, it was held:

“Where motorbike rider, without warning, made an attempt to turn around in the middle of a block at the moment an .automobile was about to pass and collision resulted when the motorbike turned back to the right, motorbike rider’s negligence, and not negligence of automobile driver in failing to sound horn, was the proximate cause of the collision.”

The defendant, under the facts in this case, had every reason to believe that the driver of plaintiff’s car would continue on his right and had no reason to expect the emergency which was created by the driver of plaintiff’s car in swerving suddenly into the path of defendant’s car, without warning of any kind. We are, therefore, of the opinion that the sole proximate cause of this accident was due to the driver of plaintiff’s car steering suddenly to his left without warning in the path of the defendant’s passing automobile or in not having his car under proper control and negligently allowing it to so swerve. The failure of the defendant to blow his horn immediately before passing cannot be charged as negligence in view of the other circumstances.

Defendant’s reconventional demand in the amount of $256.07 has been fully proven and should be allowed.

It is, therefore, ordered that the judgment of the District Court be reversed and that there be judgment against the plaintiff rejecting his demand and in favor of the defendant on his reconventional demand in the full sum of $256.07 with legal interest from judicial demand until paid, plaintiff to pay all costs.

ROBERT D. JONES, Judge, sitting ad hoc.

DORE, J., not participating.


text:
    JINKS v. BURTON SUTTON OIL CO., Inc.
    No. 3218.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      J. Minos Simon, Lafayette, for appellant.
    Thompson, Lawes v. Cavanaugh, Lake Charles, for appellee.
   ELLIS, Judge.

The plaintiff, Mrs. Eula M. Jinks, has filed this suit in which she is seeking to recover under the Compensation Act, Act No. 20 of 1914, as amended, from her deceased former husband’s employer, Burtin Sutton Oil Co. Inc. the sum of $6,000.00 at the rate of 65% of his wages from March 1st, 1948 to August 22nd, 1948, not to exceed $20.00 per week, and 46}4% of his wages from August 22nd, 1948, the date of her second marriage, to the expiration of 300 weeks.

The defendant admitted employment and the rate of pay and all material allegations of plaintiff’s petition, including the employee’s accidental death on March 1st, 1948, but contended that plaintiff’s deceased husband, Mayo Raggio, had, at the time of his death, completed his work for the day and was returning to his home and was not at that particular time performing any duties incidental to or growing out of the employment by the defendant.

The trial in the district court resulted in a judgment in favor of the defendant dismissing plaintiff’s suit, as the court concluded in its written reasons that the accident to decedent did not occur in the course or scope of his employment.

From such adverse judgment the plaintiff is prosecuting this appeal.

The learned judge of the lower court has correctly stated the facts as shown by the record in this case and the law applicable thereto, and reached the proper judgment, and we, therefore, adopt his written reasons which are as follows:

“The facts are that on March 1, 1948, and for some time prior thereto, Mayo Raggio was employed by defendant as a pumper in connection with the drilling of an oil well in 'Cameron Parish. For that work he was paid by the hour and his wages averaged about $55.00 per week. On March 1, 1948 his working hours were from 7:00 o’clock A.M. to 3:00 o’clock P.M., and the defendant company actually paid him for working those hours. In addition to his regular duties as a pumper, however, Raggio was occasionally directed to take certain reports relating to the drilling operations from the location of the well to one Walter Stanley, who operated a store at Holly Beach, in Cameron Parish.”
“On the above-mentioned date, Raggio informed the production foreman at the well that his nephew, J. B. Arbella, was going to let him off early because he planned to go to Lafayette the following day to have his son’s eyes tested. The production foreman thereupon said to Rag-gio, ‘Well, you help me tie this two-inch pipe line together and you can take out.’ After rendering the assistance requested, Raggio then asked the foreman if he wanted him to deliver the reports, and the production foreman gave the reports to Raggio to be delivered to Stanley at Holly Beach. Raggio left the location of the drilling rig at approximately 2:10 P.M. that afternoon with a large envelope containing the reports, his instructions, actual or implied, being to deliver the reports to Stanley. After the reports were so delivered there was nothing further for him to do for defendant that day and there was no necessity or requirement that he return to the location of the well that afternoon.”
“At that time Raggio lived with his wife and two children in Hackberry which is approximately seventeen miles north of Stanley’s Store in Holly Beach. There is only one highway leading from Holly Beach to Hackberry ’ and Raggio customarily traveled to and from work over that highway on a motorcycle owned and operated by him. His contract of employmént did not provide for any transportation or allowance for travel expenses between the place of his employment and his home.”
“When Raggio left the place of his employment on March 1, 1948, he rode on •his motorcycle from there to Stanley’s Store in Holly Beach, where he delivered the reports to one Mason Istre, a clerk in the store, who in turn handed them to Mr. Walter Stanley. Raggio then left the Stanley Store on his motorcycle. A few minutes later, Raggio while riding on his motorcycle, overtook and passed a car being driven by one George Sells on the Hackberry-Holly Beach Highway. At that time the motorcycle and the car were eight or ten miles north of Holly Beach and both were being driven in a northerly direction, or toward Raggio’s house. At about 2:45 P.M. that day, or only a few minutes after he passed George Sells, Raggio was found lying in the middle of the Hackberry-Holly Beach Highway unconscious, critically injured and in a dying condition. He died within a few minutes after he was so found.”
“Immediately after Raggio was discovered on the highway his cap, spots of blood, a piece of metal which had been a part of the motorcycle and marks on the highway were found south' of the place where Raggio and the motorcycle were lying, which indicates to the satisfaction of this Court that he was travelling in a northerly direction or toward his home at the time of the accident. The accident occurred at a point approximately eleven or twelve miles north of Stanley’s Store in Holly Beach, and about five or six miles south of Hackberry.”
“Counsel for plaintiff contends that since the accident occurred before 3:00 o’clock P.M. on March 1, 1948, and since he was actually paid for work up to that time, the accident occurred during Raggio’s hours of employment, and in the course and scope of his employment. In support of this contention several cases are cited, the principal cases so relied upon being Kern v. Southport Mill, Limited, 174 La. 432, 141 So. 19; Bountiful Brick Company v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402; Cudahy Packing Company of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; Ford v. City of Alexandria et al., La.App., 155 So. 48; Nesmith v. Reich Bros. et al., La.App., 14 So.2d 325; 203 La. 928, 14 So.2d 767; and Pitre v. Louisiana Highway Commission, La.App., 161 So. 894.”
“The Court has carefully considered each of the authorities so cited. The facts of the case how being considered, however, are easily distinguished from the facts which were presented in each of the cases relied upon by plaintiff, and, in the opinion of this Court, those cases are not applicable here.”

“In the present case, the Court concludes that on March 1, 1948, Raggio completed all of the duties which he was required to perform for defendant company at the time he handed the drilling reports to Mason Istre at Stanley’s Store. His conversation with his production foreman, Marvel v. Bolton, shortly before he left the drilling rig, can be interpreted only as meaning that Raggio was to be off work for the rest of the day as soon as he had delivered the reports to Stanley’s Store. His ‘hours of employment’ on that day were completed when the reports were so delivered, and after he left the store, therefore, apparently en route to his home he was not acting within .the course or scope of his employment.”

“In the case of Kern v. Southport Mill, supra, the Court said [174 La. 432, 141 So. 21]:

“ ‘In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this : (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the. place of the accident at the time the accident occurred ?’ ”
“In the present case Raggio certainly was not engaged about his employer’s business at the time of the accident. He had completed his day’s work and was going toward his home. In fact, he had travelled more than two-thirds of the distance between the place where he performed his last duty for defendant and his home. He, therefore, was pursuing his own business or pleasure at the time of the accident. Neither can it be said that the necessities of his employee’s (employer’s) business reasonably required that Raggio be at the place of the accident at the time the accident occurred. As far as the employer was concerned, Raggio was free to go wherever he liked after the drilling reports were delivered. He could have remained at Holly Beach or he could have driven in the opposite direction from Hackiberry as far as the necessities of defendant’s business was concerned. There is nothing in the record to indicate that the necessities of defendant’s business reasonably required that Raggio be approximately eleven or twelve miles north of Stanley’s Store at the time of the accident.”
“In reaching this conclusion the Court has considered the fact that Raggio was paid for working until 3:00 o’clock P.M. on March 1, 1948, when in fact the accident occurred approximately fifteen minutes before that time. But the mere fact that defendant paid him for working until that hour does not mean that regardless of what he did he must be considered as acting in the course or scope of his employment until 3:00 o’clock that afternoon. Raggio completed all of his duties for that day at the time he delivered the reports to Stanley’s Store, and after that time he became engaged on a personal mission of his own choosing and was no longer acting in the course or scope of his employment, regardless of the time for which he was paid by defendant. Milner v. Louisiana Highway Commission, 17 La.App. 28, 134 So. 441; Evans v. Central Surety and Insurance Corp, La.App., 10 So.2d 406; Como v. Union Sulphur Company, La.App., 182 So. 155; Moss v. St. Paul Mercury Indemnity Co., La.App., 33 So.2d 867;

“Counsel for plaintiff further argues that by paying Raggio for working until 3:00 o’clock P.M. on the day of the accident, defendant impliedly agreed to pay for his transportation on the days that he brought the drilling reports to Stanley’s Store. Since Raggio’s travelling expenses were paid on such days, it is argued, the case is governed by the well-established rule that the services of the laborer begin when he boards the means of conveyance to his work and end when he alights therefrom on his return trip. This Court, however, cannot concur with counsel on the theory SO' advanced. The contract of employment entered into between Raggio and defendant did not provide that any of Raggio’s travel-ling expenses were to be paid or reimbursed to him. On the day the accident occurred, the decedent was simply allowed to quit work earlier than usual because of his plans for the following day. There is no evidence in the record which could serve as any reasonable basis for the Court to conclude that on days when Raggio delivered the reports there was an implied agreement to the effect that defendant was to pay him his traveling expenses from his place of employment to his home.”

“While the accident was tragic, the Court must conclude for the reasons herein set out that it did not occur in the course or scope of the decedent’s employment, and plaintiff, therefore, is not entitled to recover from defendant in this action.”

“Judgment will be rendered, therefore, in favor of defendant Burton-Sutton Oil Company, Inc., and against the plaintiff, Mrs. Eula M. Jinks, rejecting paintiff’s demands and dismissing this suit. Defendant is relieved from the payment of any costs in connection herewith, and, the suit having been filed in forma pauperis, plaintiff is condemned to pay only such costs, if any, as may legally be assessed to her.”

It is, therefore, ordered that the judgment of the District Court be affirmed.

J. CLEVELAND FRUGE, Judge, sitting ad hoc.


author: JONES, Judge ad hoc.

text:
    BROUSSARD v. CITIZEN.
    No. 3174.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Atlee P. Steckler, Ville Platte, for appellant.
    Defendant unrepresented on appeal.
   JONES, Judge ad hoc.

The plaintiff brings this suit for personal injuries which she allegedly sustained as a result of an assault and battery on her person by the defendant. There was judgment in the trial court dismissing the plaintiff’s suit at her cost, and she has appealed.

The allegations of the petition show that on May 23, 1947, at about the hour of 10:30 a. m., after the plaintiff had attended church services and was leaving the church in company with other members of the congregation, the defendant (without cause or provocation) grabbed her by the throat and made a false accusation against her and began to whip her with a wet rope, which had been soaked in water the night before; that, after the defendant whipped her with the rope in question, he threw her to the ground causing severe injuries to her back, which injuries continued to the time of the trial of the case in the lower court. Plaintiff claims that, as a result of the battery, she sustained a medical bill of $4 to Dr. Freeman; $10 for medical supplies; $5,000 for pain and suffering, and $5,000 for humiliation and embarrassment, making a total of $10,014.

Defendant, in defense of the suit, admits the altercation with the plaintiff but alleges that it resulted from the circulation of false and malicious gossip by the plaintiff and that, when he attempted to remonstrate with the plaintiff in regard to such false gossip which she had circulated, she became aggressive and attacked him and that defendant did no more than to defend himself from her attack. In other words, the defense is self-defense and that the plaintiff was the aggressor in the said difficulty.

The allegations of Article XIV of the answer are as follows: “That at the time and place alleged in Article III of plaintiff’s petition, your respondent, who had also attended mass at the- Catholic Church, approached plaintiff, placed his hand on'her shoulder, turned her toward him, and'said: •“What are these tales you are telling about me”; that plaintiff retorted:. “Don’t come around here about any tales”; that respondent replied: “You are the one who started the whole thing”; That plaintiff thereupon shouted: “Oh, you want to fight, do you”, threw her purse to the ground and sprang upon respondent, ripping his shirt to shreds in her fingers; that your respondent thereupon grabbed a short piece of rope lying on the ground, and struck plaintiff twice across the shoulders with said piece of rope; that'plaintiff and respondent were at once separated by bystanders.”

The trial judge, in his written reasons for dismissing plaintiff’s suit, commented that the case involved questions of fact only and he was of the opinion, from the evidence, that the plaintiff provoked the difficulty. The evidence in this case, however, convinces us that the defendant, and not the plaintiff, was the aggressor in this difficulty for the reason that he accosted the plaintiff on the church grounds immediately after the services, and from Article XIV of his answer (above quoted) it is shown that he placed his hand on her shoulder and turned her toward him, at the same time questioning her about tales which she had circulated relative to him. While it might be true that the statements attributed to the plaintiff — that the defendant was having intimate relations with her daughter-in-law were not true (as was held by the trial judge) — and even if she circulated them to the knowledge of the defendant — this was not sufficient to justify the assault for the reason that our courts have held that mere words do not justify an assault. See Richardson v. Zunts, 26 La.Ann. 313; Munday v. Landry, 25 So. 66, 51 La.Ann. 303, 25 So. 66; Harvey v. Harvey, 124 La. 595, 50 So. 592, and Starnes v. Monsour, La.App., 30 So.2d 135.

In addition to Article XIV of the answer, which we believe shows the defendant to be the aggressor in the difficulty, the plaintiff has testified that defendant overtook her and began beating her with the rope and «he is corroborated in this by at least one witness by the name of Fulton Broussard, who testified that he saw the defendant catch the plaintiff and hit her with the rope. No witness testified that the plaintiff was the aggressor in the.difficulty, other than the defendant, and his testimony is without effect in the face of Article XIV of his answer. Thus, we are of the opinion that the defendant was the aggressor in this difficulty and that he is liable in damages therefor.

The evidence reflects that the defendant struck the plaintiff twice with the rope and she either tripped or he shoved her into a ditch, where she came to rest in a sitting posture. She contends that she suffered for a short while from the bruises and abrasions from the rope and that, as a result of the fall, her back was injured.

Dr. Freeman, who treated the plaintiff, testified that she visited him only one time and this was the date of the difficulty, at which time he found her to be suffering from abrasions and bruises of the leg and back. He prescribed heat and massage for the bruises and was of the opinion that her injury was only slight, and certainly not of a permanent nature. The plaintiff did not visit any other doctor, but testified that she took $10 worth of patent medicine. We are of the opinion that she sustained only slight injuries and that she will be fully compensated by granting her $100 for the injuries as well as the humiliation and embarrassment she suffered. This award is in line with the following recent decisions. Guarisco Motor Company et al. v. Carlisle, La.App., 28 So.2d 364, and Antley v. Davis, La.App., 199 So. 450.

We are of the further opinion that she should be reimbursed the $4 for the doctor’s services, in addition to the $10 which she paid for medicine.

We might add that, even though the rumors circulated by the plaintiff were not sufficient to justify the assault and battery, they should be taken into consideration in mitigation of the damages sought in this suit and we have so considered them in reaching the award herein allowed.

Accordingly, for the above and foregoing reasons, the judgment of the district court will be reversed and there will be judgment in favor of the plaintiff, Albertine Broussard, and against the defendant, Lawrence Citizen, in the full sum of $114, together with legal interest thereon from date of judicial demand until paid; the defendant to pay all costs of this suit.

DORE, J., not participating.


text:
    LEE et ux. v. WOOD et al.
    No. 3215.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Edward K. Alexander, DeQuincy, for appellants.
    Thompson, Lawes & Cavanaugh, Lake Charles, for appellees.
   ELLIS, Judge.

This is a suit to annul and set aside tax sale of the south half of the following described property situated in Calcasieu Parish, Louisiana, to wit: That certain piece of land commencing 8 feet south of the northwest corner of Lot Six (6) of Block “B” of the Subdivision of the West Half (W%) of the Southeast Quarter (SE}4) of the Southwest Quarter (SW%) of Section Eighteen (18) Township Seven (7) South, Range Ten (10) West, and being sometimes designated as the Wasey Subdivision in the Town of DeQuincy thence running East 115 feet; thence south 50 feet; thence West 115 feet; thence North 50 feet to the point of commencement.

Plaintiff alleged that the tax sale was null and void for the following reasons:

(1) That the advertisement preceding the said purported sale was erroneous and not in conformity with the law, in that the period to redeem from said purported tax sale was recited in said advertisement to be one (1) year rather than three (3) years as the law provides;

(2) That the description of said property in the advertisement preceding said purported tax sale was vague, indefinite, and insufficient, to properly identify said property.

(3) That said property was sold at said purported tax sale for substantially more than the amount for which it was advertised in the advertisement preceding said purported tax sale.

Defendants filed exceptions of vagueness, no right or cause of action, and a plea of prescription and peremption of three years, all of which were acted upon by the lower court and are not being urged on this appeal. Defendants’ answer was in the nature of a general denial, and after trial there was judgment in the Lower Court in favor of the plaintiffs decreeing the tax sale null and void and ordering the plaintiffs to reimburse the defendant C. D. Wood the amount paid by him at the tax sale as well as all amounts subsequently paid by him as taxes on the property, together with interest on such prior taxes as provided by law, and the defendants, C. D. Wood and Lester C. Hoover, to pay all costs of the suit.

The facts are as found by the trial court, viz.:

“ * * * that by warranty deed dated August 19th, 1941, and recorded on November 6th, 1942, in the Conveyance Records of Calcasieu Parish, plaintiffs acquired from N. C. Knight the North half (N/2) of the above described tract of land. They actually intended to purchase and Knight intended to sell to plaintiffs the entire tract, measuring SO feet wide and 1 IS feet deep, but through error the deed erroneously described only the North Half (N/2) of said tract.”
“After that sale was completed the North Half (N/2) of the property was assessed to plaintiffs and plaintiffs have paid all taxes due under such assessments as and when they become due and payable. The South Half (S/2) of the tract, however, continued to be assessed to Nathan C. Knight, and on May 27, 1944, the South Half (S/2) of said property was sold for the state, parish and special taxes due on .said property for the year 1943. The tax sale was conducted by the Sheriff and Ex-Officio Tax Collector for Calcasieu Parish, .and at such sale all of the property so assessed to Nathan C. Knight was adjudicated to C. D. Wood, one of the defendants in this suit, who was the last and highest bidder. The tax deed was dated June 19, 1944, and was recorded on July 25, 1944, in the Conveyance Records of Calcasieu Parish.”
“On April 10, 1948, C. D. Wood, the purchaser at the above mentioned tax sale sold the South Half (S/2) of the above described property to Lester C. Hoover, the other defendant. At or about the time Hoover purchased the property from Wood, he advised plaintiffs that the South Half of the tract had been adjudicated to C. D. Wood for unpaid taxes and that he had purchased it from Wood.”
“On May 5, 1948, after being advised that a portion of the property which they thought they had purchased from Knight had been sold for taxes, plaintiffs obtained a correction deed from N. C. Knight which purports to correct the original warranty deed dated August 19, 1941, to show that Knight conveyed to plaintiffs as of that date the entire tract, measuring 50 feet by 115 feet, and reciting that the property was erroneously described in said original act of sale. This action to annul the tax sale was then instituted on June 2, 1948.” In addition, the record shows that there was a house located, about the middle of the 50' x 115' lot of ground on which the plaintiffs lived from shortly after the time they had acquired the property and were so living at the time of the trial. The entire property was under fence. The tax purchaser said nothing with regard to his acquisition until after the three year period and at that time he offered to sell the half which he acquired at tax sale to the plaintiffs for $650. In the original deed, plaintiffs intended to purchase and Knight intended to sell the entire tract for the sum of $400.

The second ground urged by the plaintiffs as a basis for declaring the sale invalid has been abandoned. However, plaintiffs still contend that the sale is null and void for either or both of the other grounds. As we are of the opinion that the trial judge was correct in rendering judgment in favor of the plaintiffs annulling the tax sale on the third ground urged, it is unnecessary to discuss or pass upon plaintiffs’ first contention as a ground of nullity.

Section 53 of Act No. 170 of 1898 provides that in the advertisement for the sale of property for delinquent taxes the advertisement shall state “the names in alphabetical order, the amount of taxes assessed in each year on each specific piece of property, then the description of each specific piece of immovable property to be offered for sale.” It is shown by the record that the advertisement which immediately preceded the tax sale listed the amount of taxes, interest and costs as being due by Nathan C. Knight on the S/2 of the said tract as $2.01. The amount actually due for taxes, interest and costs and which the purchaser was required to pay as shown by the Sheriff’s tax deed was $2.71, comprised of the following:

State tax.10
Parish tax.56
Total .$ .66
Interest .05
Advertising. 1.75
Costs .25
Total ....$2.71

Thus, the advertisement called for the sale of the property without the payment of taxes and only one cent as interest in that the other items are actual costs of notice and advertising. It, therefore, fails to state the amount of taxes assessed as required by law. (Emphasis ours.)

The case of Calcasieu Inv. Co., Inc., v. Corbello’s Heirs, La.App., 175 So. 101, 103, decided by this Court with Judge Ott as the organ, was one in which a tax sale was held to be valid even though it was made for slightly less than the amount actually due. In that case, the amount of taxes was $6.50 on which the Sheriff charged 4‡ less interest than was actually due. The Court considered the mistake as a trifling one and applied the maxim “de minimis non curat lex” and held the tax sale valid. The Court said, however, that: “There can be no question but that a sale of property for an amount substantially less than the taxes, interest, and cost is an absolute nullity.”

The trial judge, in applying the last quoted language to the present case, stated: “While the amount of taxes due in this case is relatively small, there is a substantial difference between the amount due according to the advertisement and the amount of taxes which were actually due, as shown by the tax deed. The difference between the two amounts is great enough that it cannot be overlooked as a ‘trifle.’ ” When we consider that the taxes were 66‡, interest, 5$, notice 25‡ and advertisement $1.75, we are in thorough accord with the findings of the trial judge that this error is not trifling. While we realize that this case involves a defect in the advertisement, it must be in substantial compliance with the law, and a failure in this respect nullifies the sale.

We are, therefore, of the opinion that an advertisement for the sale of 'property for unpaid taxes which does not state the amount of taxes assessed or does state an amount in which there is a substantial difference between it and the amount actually due renders a sale made in connection therewith an absolute nullity. In reaching this conclusion we are not unmindful of the contentions of counsel for defendants to the effect that as the sale was made for the sum actually due and there was no error in the tax collector’s office but merely an error made by the type setter in setting up type for the advertisement that, therefore, neither the state, parish nor tax debtor were prejudiced. He further argues that the possibility of the plaintiffs having been adversely effected by this error is far too remote to be given the effect of rendering an otherwise valid tax sale invalid. Counsel’s argument is answered by the fact that the law provides that the advertisement shall state “ * * * the amount of taxes assessed in each year,” and in the instant case it called for the sale of property without the payment of taxes as previously stated herein, and in its most favorable light the advertisement was not in accordance with law due to the substantial error therein. We believe the cases cited by counsel for defendant inapposite to the case at bar. (Emphasis ours.)

It is, therefore, ordered that the judgment of the District Court be affirmed.

J. CLEVELAND FRUGE, J„ sitting ad hoc.


author: DORE, Judge.

text:
    MALONE v. FLETCHER et al.
    No. 3216.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Thomas C. Hall, Lake Charles, for appellant.
    Thos. F. Porter, Lake Charles, Thos. L. Raggio, Lake Charles, for appellees.
   DORE, Judge.

This is a suit for damages resulting from a collision between the 1938 Hudson automobile of plaintiff and the automobile of defendant H. B. Fletcher, which occurred on March 6, 1947, at about 5 :20 p. m. on U. S. Highway 90, between Lake Charles and Sulphur. The highway at the point of collision, runs East and West, is concrete, straight and level, and at the time of the collision, visibility was excellent. The plaintiff was driving West and defendant Fletcher was driving East. As plaintiff reached a point at about 500 feet East of a nightclub then known as the “Pleasure Club, he made a left turn to proceed into a driveway leading to his living quarters, and as he entered the South portion of the highway, the car driven by Fletcher ran into plaintiff’s car, striking it on the right front and then swinging around and then striking the right rear fender of plaintiff’s car. As a result of the collision, plaintiff was knocked unconscious and remained in that condition for several minutes after the accident and later had to be hospitalized and treated for some five weeks. He sustained severe personal injuries and damage to his car, and brings this action against defendant H. B. Fletcher as the driver of the car which struck him, and the General Gas Corporation, owner of the car and employer of Fletcher, and the Hartford Accident and Indemnity Company, insurer of General Gas Corporation.

Plaintiff’s suit is based on the allegations that the accident was caused solely by the negligence of defendant Fletcher, principally in driving at an excessive rate of speed, and in failing to see his signal for a left turn, and to proceed at such a rapid speed even after a signal was given and the left turn was being negotiated. Plaintiff contends that he gave a signal of a left turn some 60 feet prior to the point where he turned, at which time 'he saw defendant Fletcher’s car, and had ample time to negotiate the turn if Fletcher had been proceeding with due care.

The defense is to the effect that the plaintiff either gave no signal before making the turn, or did so such a short moment before making it, that it could not be perceived by the oncoming driver, and that consequently, the sole proximate cause of the collision was the negligence of plaintiff in improperly negotiating the left turn and failing to give the right-of-way to oncoming traffic.

After trial of the case, the trial judge came to the conclusion that plaintiff was guilty at least of contributory negligence which was a proximate cause of the collision, and, accordingly, dismissed the plaintiff’s suit. He did not go into the question as to whether or not defendant Fletcher was guilty of any negligence for the reáson, as stated in -his written reasons for judgment, that no reconventional demand was made by the defendants. Plaintiff has appealed.

The question presented in this case is entirely factual. The law involved, as set forth by the trial judge, is well settled, as follows: “ * * * that the burden is on the operator of a motor vehicle who desires to make a left turn, carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles,” Citing Michelli v. Rheem Mfg. Co., La.App., 34 So.2d 264; Gomez v. Broussard, La.App., 34 So.2d 643; Lane v. Bourgeois, La.App., 28 So.2d 91; Seale v. Stephens, Employer Cas. Co., La.App., 24 So.2d 651; Home Insurance Co. v. Warren, La.App., 29 So.2d 551.

The evidence is clear that the Fletcher car was traveling at a rapid rate of speed of approximately sixty-five miles per hour and that plaintiff was traveling at a very slow rate of speed. There is some conflict as to whether or not the Fletcher automobile immediately, prior to the collision, passed another car traveling East, but the large preponderance of the evidence is that it did not do so. There is also conflict in the testimony as to whether or not the plaintiff made a left-hand signal before attempting the left turn, and if so, at what distance from the turn. The preponderance of the evidence is to the effect that he probably put his hand out just as he arrived at the place of turning and then pulled his hand back in to complete the turn. The evidence also is to the effect that at the time he made his turn, the Fletcher automobile was not more than 500 feet and probably only 300 feet from him, and that Fletcher, upon perceiving plaintiff’s car in his path, immediately applied •his brakes in an attempt to avoid the collision, but that it was too late, and consequently, he crashed into plaintiff’s car.

Another question in dispute is as to the actual point of collision. The plaintiff . contends that he was struck on the shoulder after he had completed his left turn and that if defendant Fletcher had continued on the paved South strip of the highway, there would have been no collision. In his supplemental brief, plaintiff makes this his main contention, stating:

“Did the collision occur off the concrete?” If it should be found that it did, then the plaintiff did in fact determine that the turn could be made in safety and when, where, or how he signalled is unimportant, as even if improperly given it was not the proximate cause of the accident.
“It is respectfully urged that the evidence shows as set out in the original brief herein, that the collision occurred on the shoulder of the road and there would have been no accident if Fletcher had maintained a steady course.”

Even if plaintiff’s contention were correct that the collision occurred on the shoulder and not on the pavement, it appears to us that from the evidence that his maneuver in making the left turn ahead of a rapidly traveling, oncoming car was negligent and that he thereupon created an emergency which Fletcher tried to overcome to the best of 'his judgment. However, the large preponderance of the evidence is that Fletcher never left the pavement, and that consequently, plaintiff Malone had not completed his left turn at the time of the collision.

It appears to us inescapable, as found by the trial judge, that plaintiff Malone, having seen the approaching car, should have conceded the right-of-way to the approaching car and waited until it had passed him before negotiating the left turn. He therefore did not sustain the responsibility of being certain that the turn could be made without danger to oncoming traffic as required by law, and he has therefore failed to sustain the burden of proying his case. From the evidence, we fail to find any negligence whatsoever on the part of defendant Fletcher, but regardless, we are firmly convinced that the conclusion of the trial judge that plaintiff was guilty of negligence, which was a proximate cause of the accident, is correct, and therefore, the judgment appealed from is affirmed.

J. CLEVELAND FRUGE, J., sitting-ad hoc.


text:
    PICOU et al. v. CUROLE.
    No. 3194.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Knobloch & Knobloch, Thibodaux, for appellant.
    Harvey Peltier, Thibodaux, for appellee.
   JONES, Judge ad hoc.

This is an action in boundary. The allegations of the petition show that plaintiff acquired the property described in Article I of the petition in the year 1947; that said property was bounded on the South by the lands of the defendant herein, and that the boundary lines between the contiguous estates has never been established even though a fence had been erected by the defendant many years ago, which fence encroaches upon and takes approximately forty feet of the frontage of the lands of the petitioner. Plaintiff, accordingly, prayed for an engineer to be appointed by the court in order that a judicial fixing of said 'boundary line might be made between the respective parties to the suit.

Defendant in answer denied that the line of his property encroached upon or that he held any property belonging to the plaintiff herein. He declared on his title, as set forth in Article 10 of the petition, which it is alleged was acquired by the defendant in the year 1927. It is further set forth in the answer that the tract of land owned by the defendant has well-defined and established limits, described otherwise than by survey, and that'the said defendant has had the continuous and uninterrupted possession of the property for a period in excess of twenty-one years. Accordingly, defendant in answer interposed a plea of prescription of ten years, under the provisions of Article 853 of the Revised Civil Code. Later, the defendant filed a plea of prescription of thirty years under the provisions of Article 852 and Articles 3499 through 3505 of the Revised Civil Code. He later filed a plea of prescription of ten years under the provisions of Article 3478 of the Revised Civil Code.

The district judge did not appoint an engineer to survey the property, as prayed for in the petition, but heard only the various pleas of prescription as filed by the defendant. There was' judgment maintaining the pleas of prescription of ten and thirty years, and from said judgment the plaintiff has appealed.

The facts show that in the year 1917 the children of Frank Parra, Sr. partitioned the land which they acquired from their father’s estate. William Parra, the defendant’s author en title, was awarded the fourth arpent down in the eight-arpent tract, and Walter Parra, the plaintiff’s author en title, was awarded the third arpent down in said tract. The testimony reflects that more than thirty years ago a fence was constructed between the William Parra Arpent and the Walter Parra Arpent. In order to dispose of the pleas of prescription, we will consider them in the order in which they were filed.

In order to establish the plea of prescription of ten years, as provided by Article 853 of the Revised Civil Code, it is necessary that defendant show that the boundary line between his property was either fixed by a survey or the consent and acquiescence of the adjoining property owner at the time said boundary line was determined. See Opdenwyer v. Brown, 155 La. 617, 99 So. 482, and Article 853 of the Revised Civil 'Code. While it is true the evidence reflects that a fence was built along the line in question and the adjoining property owners only cultivated the land up to said fence for a period of more than ten years, yet this does not constitute sufficient consent or acquiescence to maintain the plea of prescription of ten years to the action of boundary. Williams v. Bernstein, 51 La.Ann. 115, 25 So. 411; Blanchard v. Monrose, 12 La.App. 503, 125 So. 891.

The next plea of prescription to this action of boundary is that provided by Article 852 of the Revised Civil Code, which reads as follows:

“852. (848). Prescriptive possession in excess of title. — Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he,will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

The defendant, as shown by the record in this case, produced many witnesses, whose testimony was apparently believed by the trial judge, who testified to the effect that there was a fence which was built more than thirty years ago between the William Parra tract and the Walter Parra tract (said tracts being presently owned by the respective parties to this suit) and that said fence has remained at the same location up until the present time. As a matter of fact, it is shown that this fence was rebuilt by the defendant in the year 1927 and he built it at the same location as the old fence, because evidences of said old fence were there at the time of the construction of the present fence. If it is true that this fence, separating the estates, -has been there for more than thirty years, and we believe that the evidence is abundant on this point, then it it our opinion that the plea of prescription of thirty years is applicable for the reason that the tract of land herein claimed by the defendant has been possessed under visible bounds for more than thirty years and these bounds should prevail under the ideal bounds called for in the titles. See Opdenwyer v. Brown, 155 La. 617, 624, 99 So. 482.

Of course, it is contended by counsel for plaintiff that it must be shown, in order to establish title by the prescription of thirty years, that the adverse possession, in its inception at least, consisted of corporeal possession and that, subsequently, the civil possession will suffice. It is, accordingly, argued that since the evidence does not show that William Parra, the defendant’s author en title, ever held the adverse possession of this strip with the intention of possessing it as owner, then the prescription of thirty years cannot apply. It is true that the plaintiff produced a witness, Frank Parra, who testified that he farmed the lands of his brothers (William and Walter Parra) from the year 1914 to the year 1922. This witness likewise testified that there were no fences on the property, nor any houses on the William Parra tract. He was contradicted' on these points 'by numerous witnesses and the trial judge, who was in a better position that we to determine the credibility of the witnesses, apparently did not believe the testimony as given by Frank Parra. Otherwise, he could not have sustained the plea of prescription of thirty years. We are satisfied that Frank Parra was on the property and farmed it, but we are not sure of the number of years that he did so. However, he admitted that he occupied it for both William and Walter Parra, as well as the other children, and testified that he farmed it as a whole. To say the least, when he farmed the William Parra tract, which it is shown was under fence, then his corporeal possession was the possession of William Parra, the defendant’s author en title. It is, therefore established that adverse possession of the property was held by William Parra during the year 1917, as a result of the fence and houses being on said property, and there is abundant evidence which convinces us that most probably the corporeal possession and most certainly the civil possession of said property was retained until the year 1947.

There was also filed a plea of prescription of ten years under Article 3478 of the Civil Code, alleging that defendant acquired the property in good faith and by a just title. Our appreciation of this type of possession is that it cannot be maintained if it is shown that one has possessed against the limits of his title, for the reason that then the title would not be transla-tive of the property in dispute. The evidence convinces us that the description in defendant’s title does not extend as far as the fence heretofore discussed and this ten-year prescription is not applicable beyond the limits of his title. See Articles 3478 and 3479 of the Revised Civil Code. See also Waterman et al. v. Tidewater Associated Oil Co. et al., 213 La. 588, 35 So.2d 225.

Accordingly, for the reasons assigned, the judgment of the lower court will he amended by overruling the pleas of prescription of ten years and, as amended, it is affirmed, at appellant’s cost.