author: DORÉ, Judge.

text:
    ABBOTT et al. v. LANDRY et al.
    No. 3253.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.
    Stafford & Pitts, Alexandria, for appellants.
    Lestage & Arnette, Jennings, for appel-lees.
   DORÉ, Judge.

This is an action by Mr. and Mrs. Daniel W. Abbott to recover damages for the death of their twenty year old son, D. W. Abbott, Jr., who was instantly killed when a truck in which he was riding collided with another truck. The plaintiffs sued James Spence, driver of the truck in which their son was riding, the Lumbermen’s Mutual Casualty Company, alleged to be the insurer of the truck in which their son was riding, Spencer Landry, John Daigle, driver and owner, respectively, of the other truck involved in the collision, and the Commercial Casualty Insurance Company, the property damage and public liability insurer of said truck.

Before the trial of the case, the plaintiffs dismissed their suit as to the Lumbermen’s Mutual Casualty Company.

The lower court rendered judgment in favor of the plaintiffs, and against all remaining defendants, in solido, in the sum of Nine Thousand Five Hundred Ninety Eight and 62/100 ($9,598.62) Dollars, with legal interest thereon from date -of judicial demand until paid. From this judgment the defendants, Spencer Landry, John Daigle, and Commercial Casualty Insurance Company have perfected this appeal.

The evidence discloses that on August-25, 1948, at approximately 5 o’clock p. m. their son was riding as a guest in a 1948 GMC pick-up truck, owned by one Charles. J. Benoit. The driver of the truck was James Spence and attached to the rear of said truck was a two-wheel trailer bearing a light fishing boat. Occupying the truck with Spence was Charles J. Benoit, son of the owner of the truck who was seated just right to the driver in the center of the seat, and Abbott, the son of the plaintiffs, was seated next to Benoit on the extreme right side of the seat.

They were traveling in .a northerly direction on State Highway 105, a graveled highway, in Jefferson Davis Parish, approximately four miles south of the Town of Welsh.

Approaching from the opposite direction and going in a southerly direction was the Daigle truck, being driven at the time by his employee, Spencer Landry. It was a 1948 Model Chevrolet truck, equipped with a rice carrier bed or body some 7% feet wide.

There was a bridge located on said highway, and when Spence, the driver of the Benoit truck, saw the Daigle truck approaching said bridge from the opposite direction, he thereupon applied his brakes on the pick-up truck in order to slow ,it down or bring it to a stop. The truck, however, skidded in a northwesterly direction, on its left side of the highway and collided with the front end of the Daigle truck at a point several- feet south of the bridge and about three feet west of the center of said highway.

After the accident the Daigle truck came to rest with both front wheels in -or on the edge of the ditch on the west side of the highway, facing southwest, and with both rear wheels on the roadway. The Benoit truck came to rest facing substantially in the same direction, but it was located east of the Daigle truck, the front end of the Benoit truck being about three feet across, or west of the center line of the highway. The force of the impact caused Abbott to be thrown out of the Benoit truck, and to sustain the injuries which were the direct cause of his death that evening.

The highway at that point is a straight graveled road and at the time of the accident it was dry and in good condition. The bridge located near the. point of impact was a flat bridge sixteen ■ feet long and twenty feet wide. Gravel was heaped along the railings on each side of the bridg'd which reduced the actual traveling surface between the two railings to about 18 feet. The road surface of the highway a few feet north and south of the bridge was about 23 feet.

The lower court concluded that Spence, the driver of the Benoit truck in which the plaintiffs’ son was riding, was driving at a speed of 50 to 60 miles per hour immediately prior to the accident, that he was familiar with the road at the scene of the accident and knew or should have known that the bridge was located at that point, and further, that the bridge is plainly visible some distance away from it. It found that Spence was not keeping a proper lookout and was negligent in failing to observe the bridge sooner, in failing to bring his truck to a stop or to reduce its speed without losing control of it, and in thus failing to avoid the accident, and that his negligence in these respects was a proximate cause of the accident. The Court-further found that the decedent, Daniel W. Abbott, Jr., was not guilty of contributory negligence. As to, the other defendants,- namely, .Spencer Landry, the driver of the Chevrolet IV2 ton truck, Daigle, the owner of' said truck, and Commercial . Casualty Insurance Company, the insurer, the lower , Court also found them liable in solido with the other defendant for the damages sustained by plaintiffs. It found that Spencer Landry, the driver of the truck, was guilty of negligence in creating an emergency by swerving too far to his left in the face of oncoming traffic as he crossed the bridge, and, second, in failing to apply his brakes and turn to his right within a reasonable time after he became aware of the emergency, which acts of negligence were also a proximate cause of the accident.

At the outset of this opinion, it might be well to point out that we find that the decedent, Daniel W. Abbot, Jr., was not guilty of contributory negligence. He was under no duty to keep his eyes on the road and to warn the driver of each obstacle as ■ they approached it.

As has been .noted, the defendant, James Spence, the driver of the truck in which, plaintiffs’ son was riding, did not perfect an appeal to this court, and the only question remaining to be decided is whether or not Spencer Landry, the driver of the Daigle truck, was guilty of any negligence which was a proximate cause of the accident. ■

The plaintiffs allege many acts of negligence on the part of the defendant Landry, which are as follows:

“(a) The failure of Spencer Landry to stay on the west half or his right side of the center line of said highway immediately before and on crossing said narrozv bridge under the facts and circumstances as alleged hereinabove.

“(b) The failure of Spencer Landry to keep a proper lookout for automobiles properly and legally proceeding in the opposite direction on said highway.

“(c) Of Spencer Landry in crossing the center line of said highway and entering the east half thereof in violation of the laws of the State of Louisiana, particularly at the time and place and under the circumstances alleged hereinabove in Paragraph XI.

“(d) The failure of Spencer Landry to observe and discover the perilous, dangerous and helpless' position of the Benoit truck, all of which a careful and prudent driver should have, and would have, discovered in ample time to have brought the Daigle truck to a stop and avoid the imminent collision.

“(e) Of Spencer Landry in driving the said Daigle truck heedlessly, recklessly and wantonly into the said Benoit truck at a time when it was in a perilous and helpless position.

“(f) The failure of the said Spencer Landry to have and keep the Daigle truck under proper control.”

These charges of negligence may be summed up in a complaint that the driver of the truck, Spencer Landry, was guilty of negligence in that he drove his truck across the center line of the highway and bridge, and thereafter did nothing to avoid the almost obvious collision with the other truck.

The defense is that Landry was driving thé Daigle truck on his own right side of the highway, at a speed of approximately 25 or 30 miles per hour, that he approached the bridge, drove across it, and beyond to the south, at all times remaining on his right side of the highway, never at any time crossing to his left or the wrong side of the highway, and that following the accident, the brakes on the truck were found to be locked and the steering wheel was pulled to the right.

As is usual in all collision cases, the testimony of the witnesses is conflicting.

Charles Benoit, son of the owner of the truck in which plaintiffs’ son was a guest, testified that the highway at that point was in good condition, and that Spence was driving the Benoit truck about 50 miles per hour immediately prior to the accident. Benoit noticed the Daigle truck when, the two vehicles were about three-quarters of a mile apart, but paid no further attention tó it at ’ that time. When they reached a point about 70 or 75 feet from the south edge of the bridge, however, Spence applied the brakes real hard, and Benoit then looked up and noticed the Daigle truck approaching them in the center of the bridge, the’ front end of the truck having traveled about one-half the length of the bridge. He testified that the right wheels of the Daigle truck were at least four feet from the west railing of the bridge.

Spencer Landry testified that the bed of the Daigle truck was about 7% feet wide, that the road at the scene of the accident was rough, and that he was driving the Daigle truck in a southerly direction,- at a speed of about 25 or 30 miles per hour. He was driving on the extreme right-hand side of the road, and when he approached the bridge, he swerved to the east, or to his left, about a foot and a half or two feet in order to cross it. He stated that he was traveling in the tracks which run along the west side of the bridge, and that he did not cross the center of the highway at any time. The. west side of his truck, he testified, was about a foot and a half from the west banister or railing of the bridge. As he was crossing the bridge, he saw the Benoit truck begin to skid and sway toward him. He said he then applied his brakes and turned to the right in an unsuccessful effort to avoid a collision. He thought that the accident occurred at a point 45 or 50 feet south of the bridge. He stated the Daigle truck, which he was driving, at all times while crossing the bridge, was. near enough to the west railing to enable the Benoit truck to safely pass it on the east side.

John Daigle, owner of the Daigle truck, testified that he went to the scene pf the accident a few minutes after it occurred and determined by actual measurement that the impact occurred from 35 to 40 feet south of the bridge. He found that the brake pedal in his truck was jammed and the stop light was on.

The first question to be determined is whether or not the defendant Landry drove the Daigle truck over the center line of the highway. As noted, the witnesses who testified disagree as to whether the Daigle truck traversed the center of the highway. Landry did admit that he did swerve the truck one to one and one-half .feet toward the center of the highway, but he did this in order to follow the lanes of traffic across the bridge, and he did not traverse the center of the highway.

Our learned brother in the Court below concluded that Landry did swerve the Daigle truck toward the center of the highway but did not traverse the center of the" highway. Quoting from his. reasons for his judgment, it is found: “The Court-is convinced that Landry did cause his truck to swerve further to the left than was necessary in crossing the bridge, and his actions in doing so in the face of oncoming traffic constituted negligence on his part. Upon examining the photographs of the highway at the scene of the accident, which photographs were taken within one week after the accident occurred, it appears to this Court that it was not necessary for Landry to swerve his truck one and one-half or. two feet to his left in order to follow the well defined lanes ■ of traffic across the bridge. His testimony to the effect that he did so swerve to his-left, the testimony of Benoit to that effect, and the statements made by Spence to the insurance adjuster the day after the accident that he noticed the Daigle truck ‘pulling in a little toward the center of the road,’ and Spence’s statement to the Coroner’s Jury that he saw the truck ‘pull to the left (his left),’ -convinces the Court that Landry in crossing the bridge, did cause his truck to travel nearer the center of the highway than was necessary, arid since he saw the approaching vehicle he was careless in not remaining on the extreme west side of the bridge. By swerving to his left, Landry made i.t necessary, or at least made it so appear to Spence, for the Benoit truck to be brought to a sudden stop or to have its speed suddenly checked.” (Italics ours).

The photographs which the Court refers to, and which were introduced into the record jointly by plaintiffs and defendants, reveal that the bridge in question is slightly narrower than the road. The evidence disclosed that the road -was about twenty-three feet wide, and the bridge was twenty feet wide, but with a usable roadbed of eighteen feet. It is our opinion that Landry, the driver of the Daigle truck, had to swerve a little toward the center of the road in view of the fact that his truck bed was 7y% feet wide, for hadn’t he, the bed of the truck might have collided with the sides of the bridge. Landry’s side of the highway as. it crossed the bridge, was reduced to nine feet, and since his truck was seven and one-half feet, he had to use all of the west side of the road on the bridge but one and three fourths feet. In swerving toward the center of the highway, he did just what any other driver of a large truck would have done in view of the circumstances, and Spence, the driver of the pick-up Benoit truck, being familiar with the road and the bridge, and, further, the bridge being visible, should have ascertained that the driver of the approaching truck would swerve a little toward the center of the bridge.

As mentioned heretofore, the testimony as to whether Spencer Landry, the driver of the Daigle truck, actually crossed the center' of the highway is conflicting. At the trial, Spence and Benoit testified that Landry had crossed the center of the highway. On August 26, 1948, Spence, when explaining the accident to an adjuster of the Lumbermen’s Mutual Casualty Insurance Company, which in plaintiffs’ original petition was alleged to have been the insurer of the Benoit truck, stated:

“I was driving along and we were listening to the radio in the pick up and talking. I observed a large truck approaching from the North and naturally pulled over to my side of the road. I saw this truck quite a distance and got right over on my side, but I did not slacken speed, as I did not' think that necessary. As I was almost meeting this truck, I noticed it pulling in a little toward the center of the road, and saw that his reason for doing so was to cross the culvert that I hadn’t seen up until then.” (Emphasis ours).

“I did not believe that both the trucks would be able to get on the culvert at the same:.time, and at our respective rate of speed I calculated that we would have to pass each other: on the culvert.”

In this statement, Spence did not state that the Daigle truck had traversed the center of the highway, but stated that he noticed the truck pulling in a “little toward the center of the road.” On the witness stand, he testified that Landry had swerved the Daigle truck some three or four feet over the center line, came on him while occupying that portion of the road. Further examining his statement, which was made shortly after the accident and to an adjuster whose position was not adverse to his, he in effect, stated that the reason he applied his brakes suddenly was because he figured both trucks would reach the bridge at the same time and would not have enought room to traverse same safely.

Young Benoit, the brother-in-law of Spence, and the son of the owner of the Benoit truck which Spence was driving, alsp gave a statement to the adjuster for the insurance company covering his father’s truck, which was introduced in evidence. In part, the statement read: “As to the collision, I do not know exactly what caused it, but I think that when James started to slow before meeting a truck approaching from the north, the trailer we were pulling must have caused our truck to veer toward the left and the two vehicles came together. Our pick-up-was still headed toward the left of the road when the collision occurred.”

The same boy, on the witness stand, testified that when he felt Spence apply the brakes to the pick-up truck, he looked up and saw the Daigle truck on the bridge, occupying the middle of the road, and approaching them in that position.

It is to be noted that these statements relative to the accident were made a short time after the accident when the collision was fresh in their minds, and were not given to an adjuster représentiñg hostile or adverse interest, but on the contrary, to the adjuster whose -company was or had been the insurer of the Benoit. truck. In view of these facts, we are of the opinion that the testimony of these witnesses at the trial should not be given too much weight. Surely, the adjuster of the insurance company would have brought in the statements the fact that the Daigle truck was 2, 3 or 4 feet over the center line of the highway. It would have been to his advantage to do so. Further,-Spence-gave the following at a coroner’s inquest á few days following the accident:' “I saw the truck pull to the left (his left) and realized the reason was to pass on a narrow culvert. At our respective speed we would have both met on the culvert at the same time, which was too narrow for both trucks.” (Emphasis supplied.)

In the case of Campbell v. New Amsterdam Casualty Company, La.App., 39 So.2d 180, 181, this Court, in its opinion, stated: “The only other eye witness to the accident was one Dewey Brumfield, who was working close to the intersection of these two streets, and his testimony shows that the Ford car driven by O’Quinn, failed to stop at the intersection and was traveling at a rate of speed of thirty-five (35) to forty (40) miles per hour when it struck the Chevrolet automobile driven by Mr. Campbell. There is a statement in the record, which was signed by Dewey Brumfield and given to the Insurance Adjuster, to the •effect that he was not looking at the automobiles immediately prior to the accident, because he was engrossed in his work .and that the crash of the cars attracted his .attention. Of course, the testimony of Brumfield is at variance with the statement he gave to the Insurance Adjuster. If the ®rash of the two automobiles is what attracted his attention, he certainly could not have known the speed of the Ford automobile immediately prior to the accident, nor could he have known that the Ford car ran into the Chevrolet car.”

Considering the variance in the testimony of these two boys, and the photographs introduced in evidence which reveal distinct traffic lanes which are entirely on the west side on the road (the right side when vehicles are traveling in a southerly direction), it is hard to believe that Landry, the driver of the Daigle truck, ■would have traversed the center line of the highway. Furthermore, the photographs reveal that the east side of the road in question was a lot rougher than the west side of the road, and therefore, it is not probable that one would leave a smoother side of a road for a rougher side, especially in view that the rougher side was the wrong side and another vehicle was approaching from the opposite direction.

Assuming that Spencer, the driver of the Daigle truck, did cross the center of the road, say, one foot or one and one-half feet, it is our opinion that said action on his part still would not have been the proximate cause of the accident or one of the proximate causes thereof. We have seen that the bridge was some twenty feet wide and had a road bed of eighteen feet. ■ Had Landry been one foot over the center line, he would have been occupying ten feet of the road bed, leaving eight feet for the approaching pick-up truck being driven by Spence. Eight feet would have been ample room for the pick-up truck. Had Spence been driving at a reasonable rate of speed, or had he been keeping a proper lookout, or had he braked his vehicle slowly, the accident would not have occurred. This Court is of the opinion, that the speed at which Spence was driving on a rough graveled road with a trailer attached to the truck, and his failure to keep a proper lookout and the projection of his vehicle across the center of the highway unto the west side thereof, due to the skidding caused by the tardy application of his brakes or because of faulty brakes, was the •only proximate cause of the accident. It might have been that the young man’s excitement was occasioned by seeing the truck being driven by Landry pull toward’ the middle or center of the highway on what he thought to be a narrow bridge, when in fact, it was sufficiently wide to take care of both vehicles easily. Had he been keeping a proper lookout, he would not have erroneously concluded that the bridge was too narrow for both trucks to traverse it at the same time. If an emergency existed, it was of his own making.

The only remaining question is whether Landry, the driver of the Daigle truck, could have avoided the accident. Landry testified that he was driving the Daigle truck at a speed of 25 to 30 miles per hour just prior to the accident, and that he reduced his speed after he saw the Benoit truck skidding. He stated that he was traversing the bridge in question when he noticed the Benoit truck skidding, and at that time, the Benoit truck was approximately 60 feet away. Taking the position that Landry reduced his speed to 20 miles per hour, and the Benoit truck was skidding along at the rate of 40 miles per hour, which is more favorable to plaintiffs, we would have a combined speed of 60 miles per hour, which is at a rate of 88 feet per second; so, we find that the two vehicles would cover the 60 feet that separated them, when danger first showed up in not more than % of a second. A man who has about three-quarters of a second to avoid an oncoming car does not have the time nor opportunity to do anything effective. It would have taken Landry 83 feet to come to a stop with his vehicle including reaction time, and the driver of the Benoit truck 132.8 feet. See Technical Data Department, Research Laboratories Division, General Motors Corp., reproduced Vol. 14, Tulane Law Review 493/503. Before Landry, the driver of the Daigle truck, would have reacted to the danger and peril of the oncoming truck, he would have traveled something like 17 feet. The accident was imminent once the Benoit truck started skidding down the center of the highway.

The lower Court found that the vehicle driven by Landry had traveled over 40 feet before reacting to the danger. This conclusion was drawn from the fact that skid marks were only visible some 18 inches north of the actual collision. However, if the ■ Daigle truck was traveling in the traffic lane on the west side of the road, it could be that the skid marks were not visible. But be that as it may, the accident would have occurred even if Landry had applied his brakes immediately upon seeing the Benoit truck skidding down the road. The lower Court stated that this was a matter of conjecture, and even though we feel constrained to disagree with our learned brother below, we feel that we must do so. The accident was imminent when the Benoit truck started skidding down the center of the road, and that fact, plus the fact that its driver was driving at an unreasonable rate of speed, and not keeping a proper lookout, was the sole proximate cause of the accident. The evidence discloses that Landry, the driver of the Daigle truck, had cut his truck as far to the right as possible without going into the west ditch. This was established by his own testimony and the testimony of the parties who came up after the accident «.nd found a short skid mark, the brakes locked and the wheels cut to the right, almost to the point of entrance in the ditch.

For the reasons assigned, the judgment appealed from is reversed in so far as defendants, Spencer Landry, John Daigle and Commercial Casualty Insurance Company, and it is now ordered that plaintiffs’ suit be and is hereby dismissed as to them at plaintiffs’ costs.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    SUCCESSION OF DEROUEN.
    No. 3249.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 1950.
    Rehearing Denied June 29, 1950.
    See 47 So.2d 61.

      Mestayer & Mestayer, New Iberia, for appellant.
    Louis M. Cyr, New Iberia, Minos H. Ar-mentor, New Iberia, for appellee.
   ELLIS, Judge.

This case involves the validity of an alleged last will and testament of Mrs. Perle Hebert Derouen which was presented to the District Court on the petition of an alleged testamentary executor to have the same probated and to which certain parties, alleging themselves to be the forced legal heirs of the testator, filed an opposition on the ground that it was not genuine since it had not been entirely written, dated and signed in the handwriting of the testatrix. In the alternative they plead that if it be found to have been so written, dated and signed, then it had been procured through undue influence, fraud and false representation at the time of and immediately preceding its execution.

After submission of the opposition in the District Court there was judgment maintaining the same and decreeing the alleged testament to be null and void. An application for rehearing was filed and refused, whereupon the alleged testamentary executor obtained an order for a suspensive and devolutive' appeal to the Supreme Court. The latter Court failed to find any allegation, statement or proof as to the amount involved in the estate and ordered the case transferred to the Court of Appeal for the First Circuit, La.Sup., 45 So.2d 91.

The record was filed in this Court on February 21st, 1950 and on March 6th, 1950 the appellees filed a motion to dismiss the appeal upon the following grounds:

1. The testimony of witnesses presented in behalf of appellant and appellees on the trial of this matter was not taken nor reduced to writing, by consent of all parties.

2. Correctness of judgment appealed from and determination of issue involved depends entirely upon verbal testimony of the witnesses heard.

3. Transcript of appeal does not contain a statement of facts prepared in accordance with the provisions of Code of Practice Articles 602 and 603, nor any evidence of an attempt to obtain such statement or reservation of right to do so in order to appeal.

4. Transcript of appeal does not contain any bills of exceptions nor assignment of errors.

In answer to the fourth ground urged for the dismissal, there is in the record an assignment of errors filed in’ this court on March 1st, 1950 by counsel for' appellants,

It is shown by the record that immediately prior to the trial of this matter in the District Court, counsel for. both the appel-, lees and appellant entered into an agreement or stipulation to dispense with the taking of the written note of evidence, and after the judge of the District Court had heard the witnesses for opponents and proponent, the matter was submitted and on September 21st, 1948 judgment was rendered, read and signed rejecting the instrument which purported to be the last will and testament of the deceased and further decreeing it to be null and void. An application for a rehearing was timely filed and therein counsel for appellant affirmatively set forth facts which, if true, or if the rehearing had been granted and said facts had been proven, would have resulted in the reversal of the judgment. However, the motion for rehearing was overruled.

Counsel for appellant contends that this motion for a rehearing should have been granted and in this we agree, for the trial court, in effect, held that the proof was nor sufficient to show that the purported will was entirely written, dated and signed by the deceased as the witnesses for the proponent could only testify that they had seen the deceased sign her name, whereas witnesses for the opponents testified that she was unable to write but could only sign her name and that the decedent did not speak English but conversed exclusively in French and that the will “contains legal words and phrases in the English language which she could not have known or understood.” As stated, the motion for rehearing sets forth facts which, if proven, would have shown that the deceased was educated and could •read and write the English language and that the bank box in which the will in question was found also contained a legal form of the will which would have indicated that the deceased was advised by counsel and used this form in drawing up the will in question.

In this court two of the legatees under the purported will have filed a petition, with accompanying affidavits, showing that if given an opportunity to join the proponent of the will on remand they can establish the legality of the will. Conceding that the affidavits cannot be considered by this court in deciding this case yet they do present the advisability of a remand. Under Code of Practice, Art. 906, we have the discretion to remand a case for further trial whenever we feel that'the ends of justice can better be reached by such a remand.-

We are of the opinion that the motion for a rehearing should have been granted as it was timely filed and the testimony had been heard but not transcribed due to an. agreement between counsel for proponent and opponents, and the motion sets forth facts which, if proven, would uphold the validity of the will. While the judge was not satisfied with the proof offered, we believe he should have given the-plaintiff the opportunity to supplement the proof. Our views are in accord with the decision of the Supreme Court in the Succession of Lopez, 33 La.Ann. 368, which involved the probation of an olographic last will, and after trial the Lower Court rendered judgment decreeing that “No olo-graphic will and testament exists in the Succession of Lopez.” The Court stated:

“After a close analysis of the evidence, we do not find, conceding arguendo, the theory of plaintiff, that the document produced and claimed to be the last will of Adrien Lopez, is satisfactorily proved to have 'been dated, written and signed by him. It cannot now be probated and executed as his will.”

"We think that the District Judge should not have ruled as absolutely as he has done. It may well happen that the plaintiff may hereafter discover and produce evidence actually unknown to her." (Emphasis added)

“It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, and that plaintiff’s demand be dismissed as in case of nonsuit; the costs of appeal to- be paid by the appellees, and those of the lower court by the appellant.”

It is, therefore, ordered that the judgment of the District Court be reversed and that the motion for a rehearing be granted and this case remanded to the District Court for trial on said motion in accordance with law. It is further ordered that the opponents pay the costs of appeal and all other costs to await the final determination.


text:
    ITTMAN v. VOLTAGGIO et al.
    No. 3244.
    Court of Appeal of Louisiana, First Circuit.
    May 15, 1950.

      Milton L. LeBlanc, Jr., New Orleans, for appellant.
    Pettigrew & Duval, Houma, Harold J. Bodin, Houma, Chas. J. Boatner, Franklin, for appellees.
   DORÉ, Judge.

This suit is on behalf of Beverly A. Itt-man, doing business as Ittmari Brothers, as a custom broker of the City of New Orleans. In his petition, he claims that as custom broker, at defendants’ request, he performed services in entering and clearing -defendants’ vessels, the “John Patty” and the “Elena”, and their cargoes, through the U. S. Customs Service, and paid therefor certain fees. For his services and such fees, he claims that there is due to him the sum of $937.77. ’ His suit is against Morris, Frank and Anthony Voltaggio and Nouga Babin, individually, and doing business as the Coastal Shrimp Company, a comercial partnership domiciled in the Parish of St. Mary, and allegedly- composed of the aforesaid four individuals. Frank Voltaggio was not served but he filed an answer signed and verified by him. Anthony A. Voltaggio and Morris Voltaggio were served personally but made no answer and no appearance, and no preliminary default was ever entered against them. Nouga Babin was served personally and he filed an answer on his own behalf, and on behalf of the Coastal Shrimp Company.

The answer of Nouga Babin is a general denial of the allegations of plaintiff’s petition, and further answering, he states as follows:

“That neither he nor the Coastal Shrimp Company at any time owned vessels named the ‘John Patty’ or the ‘Elena’ but that these vessels belonged to a commercial partnership known as Voltaggio Brothers or to one of the individual partners thereof, your defendant not knowing the exact one.

“That your defendant or the Coastal Shrimp Company did not at any time transact any business with Ittman Brothers and is in no wise indebted unto them.

“That defendant is informed, believes and therefore avers that the plaintiff well knew that the Boat ‘John Patty’ and the Boat ‘Elena’ did not belong either to him or the Coastal Shrimp Company and that the said Boats belong to the Voltaggios or to their partnership known as Voltaggio Brothers and pláintiff herein transacted his business with the said Voltaggios and/or Voltaggio Brothers and has at all times looked to them for payment and knows or should have known the said Nouga Babin and/or the Coastal Shrimp Company was in no wise indebted to it.”

A separate answer was filed by Coastal Shrimp Company containing the same averments as the answer of Nouga Babin.

Frank Voltaggio in his answer avers positively that he never engaged in business under the name and style of Coastal Shrimp Company, and he denies all of the material allegations of plaintiff’s petition.

The case was tried only as to the Coastal Shrimp Company, Nouga Babin and Frank Voltaggio. After trial of the case, the trial judge, for written reasons assigned, came to the conclusion that no liability has been shown as to the defendants Coastal Shrimp Company and Nouga Babin, but he did find that liability was shown as to Frank Voltaggio, and rendered judgment as follows: “Let there he judgment dismissing plaintiff’s claim against the Coastal Shrimp Company and Nouga Babin, and in favor of the plaintiff and against Frank Voltaggio, as prayed for.”

Plaintiff has appealed from the judgment, urging that it should be amended so as to be in favor of plaintiff, not only against Frank Voltaggio, but also against his brothers, Morris and Anthony, and against Nouga Babin and the Coastal Shrimp Company in the full sum of $937.77, on the theory that the services were performed on behalf of Coastal Shrimp Company and that the individuals were partners therein. Plaintiff urges that in the event that the Court should find that the services were not performed’ for Coastal Shrimp Company, and its partners, then in that event, there should be judgment against Morris and Anthony Voltaggio individually for the full sum claimed and that the judgment against Frank Voltaggio should be affirmed. '

It is clear from the evidence that the plaintiff, as custom broker, did engage in clearing shipments of shrimp coming into this country on the vessels “John Patty” and “Elena”, and one shipment by plane, and it further appears that the value of his services and fees connected therewith, were proven as set forth in itemized statement contained in the record and marked P-2. It is also shown by the evidence that the Voltaggio Brothers operated the vessels and brought in the shrimp and that apparently they operated in the name of Coastal Shrimp Company.

The evidence shows that Coastal Shrimp Company was composed .of Morris Voltag-gio and Nouga Babin, and that Frank Vol-taggio was bookkeeper thereof. The partnership was dissolved on January 1, 1948. It is further shown by the evidence that the partnership was engaged in fishing for shrimp, but not in Mexico; that Morris Voltaggio handled most of the affairs for them, and that Babin only kept the boats in running condition and saw that they were properly manned. Babin, who, according to the trial judge, cannot read and write (although this is disputed by counsel for plaintiff, who argues that Babin signed checks for Coastal Shrimp Company, and is a successful and well informed business man, and that while his formal schooling was slight, there is no proof that he was not aware of what was going on due to illiteracy), testified positively that he did not know that the Voltaggio Brothers were dealing with the plaintiff in the name of Coastal Shrimp Company, of which he was a partner.

In any event, it is the contention of t'he plaintiff that the services he performed and the fees he paid even if not for the benefit of Coastal • Shrimp Company, he should recover from- that firm and its partners, on the theory that the firm permitted the Vol-taggios to use its name in their dealings with him without ever protesting. He states that he dealt with all three of the Voltaggio brothers as members of the partnership and that his bills were sent to the Coastal Shrimp Company without ever any return thereof or any questioning thereof.

It is the contention of plaintiff that Morris Voltaggio was originally a one-half owner of the Coastal Shrimp Company, as partners with Nouga Babin, but that later the one-half interest of Morris was split up amongst Frank and Anthony Voltaggio, his brothers, and that Babin admitted this under cross-examination.

It is the further contention of the plaintiff that the Coastal Shrimp Company and Mr. Babin as partners therein cannot now deny and repudiate what they have originally accepted and benefitted by when they accepted plaintiff’s services for one and one-half years; that when a partner or partnership accepts the services, etc., of a third person over a long period of time, and berte-fits therefrom, he or it cannot be 'heard to reject or deny 'such services, etc., to the detriment of creditors and ■ third persons. Counsel for plaintiff is of the firm opinion that this is exactly what the defendants-appellees are attempting to do here, but that the Court, in furtherance of justice, should hold the Coastal Shrimp Company, and its four partners, liable and responsible to plaintiff-appellant.

In the alternative, plaintiff contends that even if Anthony and Frank Voltaggio were not actual partners, that they must be considered as partners by estoppel, háving 'held themselves out, and having been held out to the world, and to plaintiff particularly, as partners-in-fact; that if not partners-in-fact, but partners by estoppel, counsel contends that the acts of Anthony and Frank Voltaggio bound Coastal Shrimp Company to the plaintiff-appellant herein.

Plaintiff further contends that he never had any knowledge of the alleged partnership of Voltaggio Brothers, which, it is contended by Babin and 'by Coastal Shrimp ■Company, was the partnership which plaintiff was serving, and that no proof of the existence of such partnership has been introduced.

In spite of all the contentions of the plaintiff, the record shows that all correspondence was had between plaintiff and the Voltaggios, especially through Samuel Voltaggio, an attorney o'f Newark, New Jersey, and a brother of the three Voltag-■gios operating in Louisiana, and that this correspondence shows that the plaintiff was always referred to Morris Voltaggio for settlement of his account and not to the Coastal Shrimp Company or Nouga Babin. The burden of proving that Nouga Babin and the Coastal Shrimp Company partnership were the ones with which he was dealing is, of course, upon the plaintiff, and, obviously, the trial judge, who heard all the evidence, did not reach such a conclusion. The following excerpts from the trial judge’s written reasons for judgment appear to cover the situation rather clearly and do not appear to be erroneous conclusions :

“Plaintiff is very indefinite in pointing out the particular time and place wherein it was represented to him that he was dealing with the Coastal Shrimp Company. He, likewise, cannot identify the particular person, or persons, who made such representations. As a whole, however, we must conclude that he was led to believe, in a loose way, that the Voltaggios were all partners in the Coastal Shrimp Company.

“Plaintiff cites no legal authority to show that a partnership is liable for the debts contracted by third persons, who are not members of the partnership, in affairs that do not concern the partnership and in .which it is not 'benefited, simply because ■some member of the firm had knowledge of these -false representations, and did not protest.

“There is some jurisprudence in this state holding a partnership liable for the -debts incurred by an unauthorized person, on behalf of the partnership, where the partners had -knowledge that such unauthorized person was acting-for the partnership, and entered no protest. See State v. C. S. Jackson & Co., 137 La..931, 69 So. 7S1. No one can question the correctness of that rule, for the business transacted in such a case is on behalf of the -firm, and t<? hold otherwise would be to permit the partners to see first whether Of not the .firm is benefited 'by the transaction and then elect whether they will accept or reject it. This would foe strictly at the peril of the creditor, whom the partners had permitted to become involved by their representations,' or inaction.

“But such is not the case here. The business transacted was not for the Coastal Shrimp Company. To expose its assets to this claim, would be to hold that the assets of all partnerships are exposed to all claims incurred !by all persons who may choose to deal in the name of a partnership, if the members of that partnership knew, or should have known, of that circumstance, and did not immediately protest. A cardinal rule in this state is that partnership assets are a common pledge for partnership creditors. To permit persons who never dealt with a partnership, and who certainly did nothing to contribute to its assets, to participate equally, with those who did, would be a violation of the cardinal rule, and would be most unfair.

“We are not concerned, generally, with the responsibility of the individual members of a firm, who, by their action, or in■,action, may cause another to extend credit to a third person in the belief that he was extending this credit to the partnership.

“But, if plaintiff is seeking to hold Babin, the only member of the partnership who is resisting the claim, liable on this theory, he can have no success-. Babin is not shown to ever have represented to plaintiff that the business plaintiff was transacting with the Voltaggios was for the benefit of the Coastal Shrimp Company, nor that the Voltaggios were partners in, or authorized to act for, the Coastal Shrimp -Company.

“Plaintiff’s principal evidence on this point is that Babin was called upon and responded, in receiving the load of shrimp that arrived by plane, the shrimp being consigned to the -Coastal Shrimp Company, and that the -bills plaintiff mailed to the partnership were never returned, nor protested.

“Mrs. Ittman, -plaintiff’s wife, handled for plaintiff through customs that load of shrimp. She states that she called Mr. Babin because the Voltaggios were all unavailable, and Babin’s telephone number had been given her, together with the Vol-taggios’, as the numbers- to call when she had business with the -Coastal Shrimp Co. Mr. Ba-bi-n states that he responded as a favor to the Volta-ggios. He knew it was their shrimp, and that they were all away. As he cannot read and write, he says that he did not know the cargo was consigned in the name ofdhe firm. Before the shrimp finally left the airport, one of the Voltag-gios arrived and took charge of them.

“Under these circumstances, it can hardly be said that Mr. Babin, -by these actions, justified plaintiff to conclude that the Vol-taggios were' authorized to do business on the credit of the Coastal Shrimp Company.”

The fact remains that it has not been proved to a legal certainty that Coastal Shrimp Company was composed of any partners but Nouga Babin and Morris Vol.ta-ggio, and moreover, it has not been proved that Morris Voltaggio acted on behalf of said -partnership, but rather, it appears, as concluded by the trial judge, that he was acting on behalf of himself and his brothers, Frank and Anthony Voltaggio, individually. In view of those facts, it appears that Coastal Shrimp Company, and Nouga Babin, as a member thereof, were correctly found to be free of liability by the trial Court. We are of the opinion that the three Volta-ggio brothers were liable for the reason that the services were being performed on their -behalf, but since Anthony and Morris Voltaggio were personally served and no -preliminary -default was taken against them, it follows that they were not before the -Court at the time of trial. On the other hand, Frank Voltaggio actually filed an answer and, .the judgment against -him appears to be correct except that the judgment does not specifically set forth the amount awarded, and it should be recast so as to grant the amount of $937.77, plus legal interest and costs, and as thus recast, affirmed.

It may be noted further that there has been -filed in this Court a report -by -Charles J. Boatner, Attorney at Law, setting forth that he was appointed as curator ad hoc for the -defendants, Morris and Anthony Vol-taggio, and that in spite of his every effort, he was , unable to ascertain their whereabouts, and that his fee should be fixed at $25.00 for each of said defendants, to be taxed as costs and paid by the parties legally bound for same.

Since the'se two -defendants are not before the -Court, it would seem, that we are powerless to take any action on this report. It is rather a matter for the lower court to fix the costs incurred in .this case.

For the reasons set forth herein,’ the judgment below is recast to read that there is judgment in favor of the plaintiff Beverly A. Ittman, d/b/a Ittman Brothers, and against the defendant, Frank Voltaggio, in the full sum of $937.77, and as thus recast, it is affirmed.


author: McBRIDE, Judge.

text:
    BLANCHARD v. LANE COTTON MILLS CO. et al.
    No. 19360.
    Court of Appeal of Louisiana. Orleans.
    May 15, 1950.
    Ellis, Ellis & Lancaster, New -Orleans, William J. Daly, New Orleans,, of counsel, for plaintiff and appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, New Orleans, for defendants and appellees. . i .
   McBRIDE, Judge.

This appeal, which involves only a question of fact, was taken by plaintiff, Ivy Blanchard, from a judgment dismissing his suit wherein he seeks to recover from Lane Cotton Mills Company, his former employer, and its insurance carrier, American Mutual Liability Insurance Company, workman’s compensation at the rate of $20 per week for a period of 400 weeks, plus medical expenses. The petition alleges that Blanchard sustained accidental injuries in the plant of Lane Cotton Mills Company during the course and scope of his employment, which rendered him totally and permanently disabled from doing work of any reasonable character. Defendants denied that plaintiff met with the alleged accident.

Blanchard worked on a shift which began at 3:30 o’clock in the afternoon and ended at 1:00 o’clock in the morning, and the alleged injury is supposed to have occurred after 1:00 a. m. on September 16, 1947, while Blanchard was working overtime. His regular job was that of “harness cleaner,” and we gather from the record that his duties were to clean frames by the use of an air hose. On the night in question, Blanchard was permitted to work overtime, not at his regular job, but at moving warps, which weighed approximately 3S0 pounds each, from one place in the mill to another on a two-wheel hand truck.

Plaintiff testified:

“A. Well, I was cleaning harnesses, I was working from 3:30 until 1:00 o’clock in the morning. They had a nigger rolling warps and they come to me to roll warps. I said my job was cleaning harness. He asked me to roll warps in place. I rolled one and made out fine. The second one I tried to bring to the hole is when I messed ■up.- I missed the hole and went against the wall and wedged against my stomach. I hollered for help. Ida Benoit and another lady saw it, I don’t know why she wouldn’t witness for me. Then that man he came there and took the warp off of me. That was between 12:30 and 1:00 o’clock. Vincent Cuadrado was the one who helped me. I went back and tried to roll another warp, and I can’t call this man’s name, I think ‘Mice’ — the second one.

“By the Court: Let the record show that he points out Mr. Maus.

“(Witness) Yes, he come there and stood it up for me. I took another and the nigger raised it up for me. I told him I believed I hurt myself. I went on to get more and that man Maus told me to get a broom and sweep. It was 3 :00 o’clock and I went in. * * ‡»

Blanchard did not report for work on the afternoon of September 16. He stated that on September 17 he visited “a doctor on Louisiana Avenue,” whose name he did not know, and that this doctor told him that •he was ruptured and required an operation, and that the doctor made arrangements for his admission to the charity ward of Touro Infirmary of New Orleans, where the operation was performed on September 18.

On September 17, after having seen the “doctor on Louisiana Avenue,” Blanchard, accompanied by his common-law wife, Ida Benoit, who is also an employee of the mill, went to the Lane Cotton Mills Company and saw Joe Lala, an overseer. Both Blanchard and Ida Benoit testified that Blanc-hard told Lala that he was ruptured and had to be operated upon, and that he would like to have his old job back after the operation. They each agree that Blanchard did not tell Lala how or where he had been hurt, yet Blanchard testified that Lala “hollered at me and said that I would have to prove it that I got hurt at the Lane Cotton Mills.” Ida Benoit stated that Blanchard replied “that he didn’t want to prove nothing now.”

We are at a complete loss to reconcile this testimony. Unless something was said to Lala about Blanchard’s having met with an accident in the mill, there was no rhyme or reason why Lala should have mentioned that Blanchard would have to produce proof that he had been hurt there.

Lala’s version of what transpired is:

“Q. When he told you that he had to be operated on, what was the over-all conversation? A. Well, he said that he had to be operated on and had to go to the hospital that he was ruptured. I asked him if he reported the rupture to the nurse and he told me, no. I said, ‘did you get ruptured at the mill’ and he said ‘yes, sir’, then I said, ‘tell me how and shpw me how, so I can make a report on it’, then the man told me that he-didn’t get ruptured in the mill but somewhere else.

“Q. Did you tell him that he had to prove that he was ru-ptured in the mill ? A. No, sir, all a hand has to do is tell me that he is sick or has had an accident and I refer him to the first aid. That’s all he has to do.”

As to the actual occurrence of the accident, besides the testimony of Blanchard we have that of Vincent Cuadrado, a workman in the mill, and Ida Benoit. The former testified that on the night of the alleged accident he “heard somebody hollering,” and turned around and saw Blanchard struggling with a warp. He lifted the warp off Blanchard and laid it in the rack, then returned to his work bench. Ida Ben-oit says she saw Cuadrado lift the warp off Blanchard.

Maus, a foreman at the mill, who, Blanchard stated, told him after the accident “to get a broom and sweep,” denied that he knew anything about an accident having occurred at the mill at the time in question, and said that the first knowledge he had of Blanchard being ruptured was on the afternoon that Blanchard called to see Lala, when Blanchard stated to him that he was going to be operated upon. Maus stated emphatically that Blanchard did not mention to him when or where he had been injured.

Bolotte, another employee, testified that he also spoke to Blanchard that afternoon, and that Blanchard told him he did not get ■hurt at the Lane Cotton Mills.

Plaintiff admits that he made no report of the alleged accident to anyone in authority at the mill on the night on which he claims he was injured, nor did he go to first aid. Neither did he report the alleged accident and injury to anyone in authority the following day. Both Blanchard and Ida Benoit admit that when Blanchard spoke to Lala, two days after the supposed accident, he did not mention to Lala when or how he had been injured, although he had employed the “doctor on Louisiana Avenue” and had already arranged plans to undergo the operation. No demand was ever made by Blanchard for medical aid, and no demand for compensation was made, except through an attorney, more than two months after the alleged accident.

The testimony of plaintiff and his two witnesses makes no favorable impression upon us; on the contrary, the testimony-leads us to the firm belief that Blanchard did not meet with an accident in the Lane Cotton Mills, but sustained the rupture at some other place and in some other manner.

We are bolstered in this opinion by the evidence of Calvin J. Chambers, a foreman, the gist of whose testimony is that on the first day that Blanchard came to work at the mill, he was sent to Chambers to learn “warp tieing,” and Blanchard was put to work as a “learner.” About-half an hour or so afterward, Blanchard came to Chambers complaining that he could -not handle the job, and when asked why, he said “he couldn’t do it because he was ruptured.” Blanchard was thereupon assigned to the lighter Job of cleaning harnesses.

The trial judge, according to his assigned written reasons- for judgment, concluded that the plaintiff did not make out his case, mentioning specifically that he believed the testimony of the defense witnesses, Lala, Mans, Bolotte, and Chambers.

The finding of the lower court is fully supported by the record, and, accordingly, the judgment appealed from is affirmed.

Affirmed.


author: McBride, judge.

text:
    FREDERICK v. NEW ORLEANS TERMINAL CO. et al.
    No. 19402.
    Court of Appeals of Louisiana. Orleans.
    May 15, 1950.
    Peter J. Compagno and Guy L. Deano, Jr., New Orleans, for plaintiff and appellant.
    Monroe & Lemann, New Orleans, Walter J. Suthon, Jr., New Orleans, of counsel, for defendants and appellees.
   McBride, judge.

Oliver- Frederick filed this suit against the New. Orleans Terminal Company, the New Orleans & Northeastern Railroad Company, and the Southern Railway System, claiming of them, jointly and solidarity, damages in the sum of $19,688.99,- for personal injuries and property damage, arising and growing out of a collision between plaintiff’s automobile and a loose box car being “kicked” by defendants’ employees across Claiborne Avenue at the Press Street railroad yard, on the evening of December 5, 1946, between the hours of 8:00 and 8:30. The case is before us on plaintiff’s appeal from a judgment of the Civil District Court for the Parish of Orleans dismissing -his suit after a trial on the merits of the case.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans intervened,, and claimed a judgment against both plaintiff and the defendants for the sum of $416.25, representing the costs of hospitalization accorded plaintiff as a result of his injuries sustained in the accident. No appeal has been taken by the intervenor.

The petition charges that the employees of the defendants were negligent in the performance of their duties, especially respecting the nature of their method and procedure in switching cars absolutely uncontrolled at a dangerous crossing in the City of New Orleans. Defendants’ answer alleges that the switching movement was conducted by the employees of defendant New Orleans Terminal Company; they deny negligence, and aver that due warning of the switching operation was given to motorists approaching the crossing, and that the accident would have been averted had plaintiff exercised due care as he approached the crossing and drove upon the tracks. In the alternative, defendants plead that there was contributory negligence on the part of plaintiff such as to bar his recovery.

Claiborne Avenue, a paved thoroughfare, crosses defendants’ railroad tracks approximately at a right angle. The automobile, which was being driven by plaintiff, was proceeding uptown, or towards Canal Street, and the box car was moving from the direction of the river toward the lake, on Press Street, or from plaintiff’s left.

Defendants maintain twenty-one tracks on Press Street at the Claiborne Avenue crossing, and the width of'the trackage area, as measured from the outer rails of the respective outside tracks, is about 265 feet. It is uncontroverted that no gates or automatic lights or signals are maintained at 'this crossing.

Plaintiff, at the time of the accident, was on the mission of conveying a sick child to the Charity Hospital. Besides plaintiff and the child, four women were riding in the automobile, one of whom was the mother of the child.

The only eyewitnesses to the accident who gave testimony in the case were plaintiff and the four major passengers in his automobile, the five members of the switching crew conducting the railroad- movement during which the accident occurred, and a flagman who was then on duty at the uptown side of the crossing.

There is a conflict in the evidence as to the weather conditions at the time of the collision. Plaintiff testified that the night was cold and misty,' and that his automobile windshield wiper was being operated. One of his witnesses says it was dark, cold, and dreary, but not raining; another says it was very cold and drizzling, while still another says it was not raining. Plaintiff’s other witness simply stated that the night was a pleasant one, not cold and not rainy. On the other hand, the testimony of defendants’ witnesses is that the weather was clear and cool, but not cold, and their testimony, in our opinion, clearly preponderates the evidence produced by plaintiff, and our belief is that there were no unusual weather conditions prevailing, such as would have interfered with , plaintiff’s observation of the tracks or of the signals given by the defendants’ flagman stationed to give warning of the approach of the unattached box car.

A “kicking” movement of a railroad car is accomplished in this fashion: the locomotive, with one or more cars attached, is put into motion in the direction in which it is desired to send the car to be kicked, and the car is then “cut off” or uncoupled and the speed of the locomotive i,s -slackened, the effect being that the car will roll ahead from acquired momentum to its intended destination. Cars may be kicked singly, or two or more together, and the car or cars to be kicked will be those farthest from the locomotive. In the operation here involved, two cars were kicked singly. The locomotive, which was on whát is termed as the “lead” track, faced 'towards the river, and the two cars were coupled to the rear end or the tender of the locomotive — the end toward the lake.. The switch on this lead track, which, when thrown, would send each of the cars onto the particular track for which they were destined, was, located about 75 feet toward the river from the Claiborne Avenue intersection. The first of the two cars was kicked without incident, and was sent across Claiborne Avenue down track No. 11. The accident occurred whilst the, second car, which rolled into Claiborne Avenue at a speed estimated by defendants’ witnesses at about three or four miles an hour, was being kicked. That the car was moving slowly is also attested to by the physical fact that it came to a stop before completely crossing Claiborne Avenue, with one end toward the lake off the paved roadway and against the automobile, which had been shoved off the pavement in the direction of the lake.

Another controverted point in the case is on which of the 21 tracks the impact occurred, but the weight of the evidence demonstrates that the automobile was struck on the extreme downtown track, or the first track it reached as it came to the crossing. All five of the trainmen testified that the box car was sent down that track, and that .the accident happened thereon. The crossing flagman then on duty on the uptown side of the tracks testified that the accident occurred on a track nearer the downtown side than the uptown side of the crossing, but he is not sure as to the particular track. This witness remained at his post on the uptown side of the crossing after the accident, and did not go over to where the accident occurred.

One of the occupants of the automobile agreed with the defense witnesses that the accident happened on the first track that the automobile reached as it came to the crossing from the downtown side. ’ Two others did not know on which -track the accident happened. The fourth passenger in the automobile estimated that it was hit on the eighth or ninth track.

Plaintiff insists that he had driven across several tracks before the collision occurred, and estimated that , his automobile was hit on the ninth track, or thereabouts. He testified that he approached the crossing at about 30 miles an hour, but slowed to about 20 miles an hour as he neared the tracks, and that he was moving at about 10 miles an hour when the box car bore down on him and struck his automobile. His testimony is hazy and confused with reference to “stepping on the gas” after slowing down, and then taking his foot off the accelerator before the collision.

The salient point in this case is whether the railroad employees took ample precautionary measures to avert accidents and to safeguard the general public against the dangers attending the kicking of the cars, especially over a much used thoroughfare in a populous city, which manifestly is a highly risky and hazardous undertaking, in that the cars are uncontrolled and cannot be brought to a Stop in the event of an emergency. In Mitchell v. Illinois Cent. R. Co., 110 La. 630, 34 So. 714, 716, 98 Am. St.Rep. 472, the Supreme Court said that a “running switch,” which is somewhat similar to a kicking movement, “is at all times and in 'all places an operation attended with more or less danger.”

Frederick testified that before driving upon the tracks he did not see a flagman, and had no warning of the approach of ■the oncoming box car. The four witnesses who were riding in his car likewise denied that a flagman was on duty at the time, and they say that no warning was given of the switching movement. One witness testified that she saw the box car rolling just seconds before the impact.

According to defendants’ evidence, two flagmen were on duty, one, Ervin Oubre, being stationed at the uptown side of the tracks to warn traffic approaching from that direction, and the other, Emile Main-gelon, -was posted on the downtown side of the tracks to warn traffic travelling toward uptown, and that each of the flagmen held a lighted red lantern as a warning or danger, signal to persons -or vehicles intending to make a crossing of the tracks. The foreman of the train crew testified that the kicking operation was under his superr vision, and that he followed the usual and customary procedure of calling to the flagman nearest to him — in this case Main-gelon on the downtown side of the crossing —to flag the crossing, and that Maingelon relayed the signal to flag to Oubre, on the far side, by a whistle. The foreman stated that neither movement was commenced until he saw that the flagmen were out on the crossing in their proper places, with their red lights. After starting the second movement, he testified, he boarded the rolling box car and rode it toward the crossing, and that from his position he could and did look down Claiborne Avenue and saw Maingelon holding his red lantern, and saw Maingelon’s efforts to flag Frederick’s automobile to a stop, but that the automobile came on and struck Maingelon’s lantern. The foreman then jumped from the box car, to escape the possibility of being involved in the impact with the automobile.

Oubre, who flagged on the uptown side, testified that before the second movement was started he heard .Maingelon’s whistle signal, and that he saw Maingelon on the downtown side of the tracks in- the street with his red lantern. He then turned around and faced uptown to flag traffic approaching from that direction.

The “helper,” who uncoupled- the box car on signal from the foreman, was between the tender and the box car, riding on the foot board of the tender, when the uncoupling was made. From this position he could not see Maingelon in the crossing, as the box car obstructed his view in that direction. However, he said that just before getting on the foot board he had seen Maingelon standing, in the street with his red lantern, a little downtown from the track.

The other helper’s testimony is to the ■ effect that 'he had ridden the first car kicked across Claiborne Avenue, to couple some cars about 200 feet beyond, and that he did not witness the collision. He stated that when he rodé the first car he saw Maingelon standing in the street with his lantern, on the downtown side of the tracks.

The fireman testified that he observed Maingelon with the lantern at his post during the first kicking movement, but that he did not again look out of the cab until he heard the crash. -When he alighted from the locomotive after the crash, Maingelon was in the middle of the street holding a lantern with the glass broken.

The engineer, who remained at his post on the uptown side of the locomotive during both movements, had no view of the flagging operations on the downtown side of the tracks.

Maingelon, the central figure, who is an elderly man, could not be produced as a witness in the case. He had 'retired from work some months after the accident and before the trial. When subpoenaed as a defense witness, his physician certified that he could not appear in court, because of senile dementia. Some effort was made to take -his testimony out of court, which resulted in a certification by his physician that this would be detrimental to his health.

The testimony of the defense witnesses, respecting the flagging of the crossing, appears to be frank and sincere, and we entertain no doubt that Maingelon was at the downtown side of the crossing, with his signal light, at the time of the collision. The foreman observed him unsuccessfully endeavor to flag plaintiff’s automobile to a stop, and saw the automobile hit the lantern which the flagman held. After the accident, the fireman noticed Maingelon in the street with a lantern with a broken - glass.

That there was contact between plaintiff’s automobile and the lantern is also shown by the testimony of Frederick and his witnesses. Frederick himself said that a man struck the right side of his automobile with what he described as a white light, and that the light hit his automobile at about the third track, and that the accident happened on about the ninth track. Two of the other occupants of the automobile also testified as to. a light striking the right side of the automobile. Jeffie James admitted hearing the noise of something striking the automobile, and that she saw a man’s arm, and what struck the automobile looked to her like an unlighted lantern. Malvina West said that just before the collision a man came up to the right side of the automobile with a light and hit that side of the automobile with something.

Counsel for plaintiff contend that Main-gelon was not at his post of duty at the time in question, but that he appeared a split second before the impact and struck at the automobile with his lantern while it was upon the tracks, too late to successfully signal the approach of the loose box car. The weight of the evidence does not support this theory in the least.

Counsel also point to the physician’s certification that Maingelon is in a condition of senility, and argue that at the time of the collision Maingelon, because of that condition, was not possessed of the faculties necessary to perform the duties of protecting the intersection. The evidence entirely dissipates this contention. Maingel-on’s fellow workers testified as to his activities before and after the accident. Oubre, who worked at the crossing regularly with Maingelon for about six months after the accident, stated that while Main-gelon was an elderly man, his movements were active and lively. The foreman recalled seeing Maingelon working six or seven months after the accident, and one of the helpers knew Maingelon as an elderly man, but not handicapped.

In the case of Mitchel v. Illinois Cent. R. Co., supra, a young boy, who 'had been injured as a result of a running switch, was allowed a recovery against the railroad, but the court there found that the brakeman, stationed at the crossing, was negligent in giving his attention to the switching movement, rather than to those who came up to the crossing, and failed utterly to give the warning he was sent there to give.

That feature is not present in the instant case. While defendants could have used safer means and methods to switch cars, it appears to us, under the circumstances, that sufficient precautions were employed to avoid accidents and to safeguard the public, and if anyone had respected the. signals of the flagmen, which should have been seen by one attempting to traverse the tracks, no untoward incident, such as the collision involved here, could have possibly resulted. We fail to see that defendants’ employees were guilty of- the acts of negligence charged.

As has already been stated, Frederick was conveying a sick child to a hospital, and undoubtedly, in the emergency and in his haste, he was operating his automobile at too fast a rate of speed and without ordinary care. We cannot understand why he should not have observed and obeyed the flagman’s signal and braked his car to a stop before running upon Maingelon, striking the lantern which the flagman held' in his hand, and placing himself in a position of dire danger. Plaintiff’s disregard of the conditions existing at the crossing unquestionably was the sole cause of the accident.

The judgment appealed from appears to be fully supported by the record, and. it is accordingly affirmed.

Affirmed.


author: HOFFPAUIR, Judge Ad Hoc. DORE; Judge

text:
    FORD v. KURTZ.
    No. 3256.
    Court of Appeal of Louisiana. First Circuit.
    May 15, 1950.

      Boswell & Loeb, New Orleans, Plauche & Plauche, Lake Charles, for appellant.
    . Chas C. Jaubert, Lake Charles, A. J. Resweber, Lake Charles, for appellee.
   HOFFPAUIR, Judge Ad Hoc.

The plaintiff’s minor son, Charles Arthur Ford, employee of the defendant, Otto Kurtz, doing business as O. K. Grocery & Market, sustained accidental injuries on September 17, 1949, while the said minor employee was engaged in the course and scope of his master’s employment. The employment was admittedly hazardous, and the accident and injuries were in all respects, covered by the Employers’ Liability Act,-Act No. 20 of 1914, as amended, our Compensation Act. The circumstances of the accident were that while the minor employee was engaged in the delivery of merchandise for his employer, using for that purpose a motorscooter, at the intersection of Clarence and Common Streets in the City of Lake Charles, a collision occurred between an automobile owned and driven by James Prejean, and a truck driven by Willie Whittington, an employee of Howard Haye, doing business as Haye’s Grocery, and while in the course and scope of his employment, which had the effect of throwing one of the motor vehicles onto and injuring the said minor employee.

On September 20, 1949, three days after the accident, plaintiff individually and for the use and benefit of his minor son, sued the said James Prejean and Willie Whit-tington, jointly and in solido, in tort, for damages in "the sum of $2390.00 resulting from the injuries received by the minor and the medical expenses incurred by him.

After institution of the suit, Howard Haye, the employer of Whittington, and his liability insurer, with the approval of the District Court, effectuated a compromise settlement of the tort claim against Whittington, under the terms of which Whittington, Haye and the latter’s liability insurer were unqualifiedly released for the sum of $1175.00. The release expressly reserved the plaintiff’s right to proceed in the tort suit against Prejean, and expressly reserved the plaintiff’s workmen’s compensation rights against the present defendant. On September 28, 1949 the tort suit against Whittington was dismissed by Judgment of the District Court with prejudice in so far as said Willie Whittington was concerned, and with plaintiff’s express reservation of rights to claim from James Prejean all damages occasioned by the accident of September 17, 1949, and with the express reservation of plaintiff’s right under the Workmen’s Compensation Act of Louisiana.

On October 19, 1949, plaintiff filed this suit against the defendant, claiming of the defendant the sum of Five Hundred ($500.-00) Dollars, as medical expenses incurred and to be incurred by him, and, for the use and benefit of his son, compensation at the rate of $11.70 per week from the date of September 17, 1949, for a period not exceeding 400 weeks.

The defendant, in his answer, admits the employment of the minor, rate of compensation, the accident and injury, but denies that the minor son is totally and permanently disabled. ■ He avers that the said injuries are of a purely temporary nature, and did not, and will not, disable the said minor to any extent beyond a period of six months following the date of said accident. In further answer, he sets out that since the" plaintiff, on behalf of himself and his minor son, has received $1175.00 from Whittington, Whittington’s employer, and the latter’s liability insurer, supra, which “amounts in legal effect to a payment workmen’s compensation to plaintiff’s son for a period of approximately one hundred (100) weeks or to the approximate date of August 18, 1951; that plaintiff’s minor son will be entirely and completely healed and free from any and all disability long prior to the said approximate date of August 18, 1951; and that, therefore, defendant is and will not be responsible to plaintiff, for and on behalf of his minor son, for any workmen’s compensation payments or benefits.” In the alternative, he avers that in the event of being cast for workmen’s compensation that he be given credit for the said $1175.00, and the compensation payments to start only after August 18, 1951. of

On trial of the suit, the district judge, with written reasons assigned, rendered judgment in favor of the plaintiff, for the use and benefit of his minor son, granting compensation as for total temporary disability, that is, at the rate of $11.70 per week beginning September 17, 1949, for a period not exceeding 300 weeks, and in favor of plaintiff individually for the sum of $345.65 as medical expenses, and disallowed defendants claimed credit. The defendant has appealed.

In this 'Court, the defendant-appellant is complaining only of that part of the judgment which denied the defendant-appellant credit for the amount received by the plaintiff in settlement of the damage suit, hence the question presented to this Court is whether or not the defendant-appellant-employer is entitled to credit against his admitted workmen’s compensation liability, the amount which was received by plaintiff-employee in the compromised settlement of his suit against a third person in tort, to the extent of the sum of $1175.00, so received by him. This question is one purely of law. The plaintiff contends that defendant-appellant is not so entitled, basing his contention on the case of Richmond v. Employers’ Liability Assur, Corporation, La.App., 31 So.2d 442, a case decided by this Court; while defendant contends that it is so entitled, basing its contention on the case of Smith v. McDonough, La.App., 29 So.2d 818, a case decided by the Orleans Circuit Court of Appeal. The district judge upheld plaintiff’s contention, basing his judgment on the Richmond case, supra.

The question presented is the interpretation of Section 7 of Act No. 20 of 1914, as amended, Act No. 247 of 1920, Our Workmen’s Compensation Statute, which said Section reads as follows:

“1. * * * When an injury for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person (in this Section referred to as third person) than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Act; and the payment or award of compensation hereunder shall not affect the claim, or right of action of such injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for such injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for such injury.

“2. Any employer having paid or having become obligated to pay compensation under the provisions of this Act may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent; provided, that if either such employee or his dependent, or such employer, shall bring suit against such third, person, he shall forthwith notify the other in writing of such fact and of the name of the Court in which such suit is filéd, and such other may intervene as party plaintiff in such suit.

“3. In the event that such employer or such employee or his dependent shall .become party plaintiff in such suit and any damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damage shall not be sufficient or shall only be sufficient to reimburse the employer for the compensation which he has actually paid, with a reasonable attorney’s fee, to be fixed by the Court rendering the judgment, and his costs, such damages shall be assessed solely in his favor ; but if the damages shall be more than sufficient to so reimburse the employer, the excess shall be; assessed in favor of the' injured employee or his dependent; and upon payment thereof to the employee or his dependent the liability of the employer for compensation shall cease for such part of the compensation due hereunder, computed at six per cent per annum, as shall be satisfied ’by such payment.

“4. No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the other unless assented to by him.”

This Court had occasion to interpret this section in the case of Richmond v. Employers’ Liability Assur. Corporation, La.App., 31 So.2d 442, 445, and the question herein presented.

In the Richmond case, ' after quoting extensively from several cases outside of this State, it was held “.that the phrase ‘a legal liability to pay damages’ as used in Section 7 means a liability which must be litigated, determined and enforceable.” In his oral argument and in his brief, the defendant contends that this Court “took a strict and rigid view of the language” used in the quoted section supra, “saying, in effect, that there could be ‘no third person legally liable to the employee until that third person had been duly cast, and adjudged liable, in suit in tort’ ”

There is a distinction between this case and the Richmond case. Suit was filed by the plaintiff herein against the joint tort-feasors, true without notifying the employer as provided by the act, yet after the suit was filed an offer of compromise was offered on behalf of one of the tort-feasors. The offer of compromise was submitted to the District Court for approval, by formal order approval was given of the claim in the amount of $1175.00, and by judgment of Court the suit was dismissed as to one of the defendants. It cannot be said that the suit had only, a nuisance value for the order of approval was for approximately 50% of the amount claimed. The liability had therefore been determined and enforceable.

As stated by the author of the opinion in the Richmond case, “the third person was the United States Government, which was, at the time of the accident, not subject to suit on tort claims, and consequently no suit was ever or could be filed, and the only relief the plaintiff and/or the defendant could obtain was the introduction and passage of a claim bill, * * * there was no ‘legal liability to pay damages’ which could be litigated, determined and enforced.”

It is now settled -by the act that both the employee and the employer have a right of action against the third party responsible for the employee’s injury and no compromise with such third person by either employee or employer can prejudice the rights of the other unless assented to by him. Different from the Richmond case we find that the liability was determined and made enforceable not only by the agreement of release but also by order and judgment of approval by the District Court.

In the Smith case, supra, the Court apparently had before it the precise question involved here and the Court upheld the defendant’s right to a credit measured by the amount recovered by a compromised settlement by the injured employee with a third person who allegedly had tortiously injured the employee. In so upholding the contention of the defendant, the Court stated: “In regard to the claim of the plaintiff in his answer to the appeal to the effect that the credit of $1,234.16 received in compromise should be disallowed, we observe that in paragraph 3 of Section 7, as amended, it is provided that where suit is brought by either employer or the employee for damages against the third person and the amount recovered is not sufficient to discharge the obligation of the employer for compensation, he alone is entitled to the amount so recovered. In other words, a preference is given the employer whether the suit is brought by the employer or by the employee and we believe a similar situation obtains where a compromise is made. Therefore, the credit was properly allowed.” [29 So.2d 822]

On the merits there is no dispute before this Court, and the testimony supports the judgment of the lower Court, that is the sum of $345.65 with interest from judicial demand until paid for medical expense, with reservation to reopen in the event it becomes necessary to show additional medical expense, however not to exceed the sum of $500.00 and compensation for disability, for the use and benefit of the minor son, Charley Ford, not to exceed three hundred weeks at the rate of $11.70 per week with interest on each unpaid installment from due date at 5% per annum.

In regard to the claim of the defendant that the sum of $1175.00 received in the compromisé of the suit should be allowed as a credit in paragraph 3 of Section 7, as amended, it is provided that where suit is brought by either the employee or the employer against the third party and any damages are recovered, such damages shall be so apportioned in the judgment, that the claim of the employer for the compensation paid shall take precedence over that of the injured person, and where the amount recovered is not sufficient to discharge the obligation of the employer for compensation, he alone is entitled to the amount so recovered.

Therefore in this respect the judgment of the trial court is amended so as to allow credit for the sum of $1175.00, and as amended the judgment is affirmed.

DORE; Judge

(dissents).

We had occasion to interpret Section 7 of Act No. 20 of 1914, as amended, in the case of Richmond v. Employers’ Liability Assur. Corporation, La.App., 31 So.2d 442, and the question herein presented.

In the Richmond case, after quoting extensively from several cases outside of this State, we held “that the phrase ‘a legal liability to pay damages’ as used in Section 7 means a liability which must be litigated, determined and enforceable.’ ” In his oral argument and in his brief, the defendant contends that we “took a strict and rigid view of the language” used in the quoted section supra, “saying, in effect, that there could be ‘no third person legally liable to the employee until that third person had been duly cast, and adjudged liable, in a suit in tort.’ ” A re-examination of the authorities cited by me and a revaluation of the same lead me to a definite conclusion that our so holding is fully justified.

With the meaning of the phrase in mind, I shall: attempt to find but what was the intent or meaning of the Legislature, in formulating this section and will therefore consider the section paragraph by paragraph. ■ ■

The first paragraph grants unto the injured employee a right of action against his employer for compensation under the Act and a right of action against the third person, tort-feasor, to recover damages for such injury.

The second paragraph grants unto the employer of the injured employee the right of action to be indemnified for the amount which he has paid or became'obligated to pay as compensation to the injured employee; provided, if such employee or such employer files suit against such third person, the party filing the suit shall forthwith notify the other in writing of such fact, and of the name of the court in which such suit is filed, and such other party may intervene as party-plaintiff in suit. It may be proper- to mention at this time, in the case at bar, that the injured employee brought suit against the third persons in tort without notifying the employer as provided for in this paragraph; and without affpr.ding an opportunity for the employer to intervene in' the suit,, the injured employee dismissed the suit with prejudice against .one of the third persons, tort feasors.

The third paragraph, and that is the paragraph under - which defendant bases his argument that he' is entitled to credit of $1170.00, to me, clearly contemplates that a suit be filed by either party,- with the intervention 'of the other party, against the offending third person and that such suit be successfully terminated (note the beginning of the paragraph, thusly: “In the event that such employer or such employee or his dependent shall become party-.plaintiff in such suit and any damages are recovered”) before it should be given ef-feet. This paragraph does not in any wise provide that in the event the employee recovers any amount from the tort feasor or third person otherwise than by suit in which the employer is a party thereto, such as a compromise settlement without notice or assént by the said employer, then and in that event, the employer shall be entitled to a credit or discharge of compensation payment due to the employee. To hold otherwise, it would appear to me to be amending the section, particularly this third paragraph, or legislating, and not interpreting the section of the Act.

I am fortified in my position by paragraph four of the section. That paragraph is very clear in that the compromise settlement in the case at bar does not in any way affect the right of defendant to proceed against the third parties, joint tort feasors, for indemnification for the expense to which he has been put by their negligence.

•' In oral argument and in brief, defendant seriously criticizes my decision in the Richmond case, supra. In his brief, he states: “The expressions of the Court in the Richmond case, in so far as are applicable here, were not in any way necessary to the decision in the Richmond case, ■and these expressions were, therefore, entirely gratuitous and not controlling, since they constituted obiter dicta.” He may have cause to complain that some of our expressions may constitute obiter dicta in that the basis of our conclusion was, in substance; fhat the payment in that case by the United States Government to the plaintiff-employee was “in the nature of an award above and beyond any relief granted to the plaintiff-employee by his employer or its insurer under our existing laws”, and not because there was any ‘legal liability’ on the part of the Government.” However, I do not. retract any expressions found in that case which .may be applicable to this case.

The defendant strenuously relies on the case of Smith v. McDonough, La.App., 29 So.2d 818, 822, decided by the Orleans Court of Appeal.

In the Smith case, the Court apparently had before it the precise question involved here and I grant that the Court upheld the defendant’s right to a credit measured by the amount recovered by a compromised settlement by the injured employee with a third person who allegedly had tortiously injured the employee. In so upholding the contention of the defendant, the Court stated: “In regard to the claim of the plaintiff in his answer to the appeal to the effect that the credit of $1,234.16 received in compromise should be disallowed, we observe that in paragraph 3 of Section 7, as amended, it is provided that where suit is brought by either the employer or the employee for damages against the third person and the amount recovered is not sufficient to discharge the obligation of the employer for compensation, he alone is entitled to the amount so recovered, In other words, a preference is given the employer whether the suit is brought by the employer or by the employee and we believe a similar situation obtains where a compromise is made. Therefore, the credit was properly allowed.” (Underscoring mine).

For my part, I do not choose to follow that decision. The underscored portion of the decision clearly shows that the third paragraph, in order that the employer may have a preference thereunder, contemplates that a suit be brought by either the employer or the employee, and that the said suit be finally terminated in favor of the plaintiff or plaintiffs.

I disagree with the expression contained in that case to the effect that “a similar situation obtains where a compromise is made.” A compromise is not an adjudication of a “legal liability” of the third person, or tort feasor, nor, is it even evidence thereof, and therefore cannot be said to be similar in any wise to a suit to finally determine whether “legal liability” exists against the third person or tort feasor.

For the reasons, stated by this Court in the Richmond case, and for the • further reason that we must interpret the Compensation ' Statute liberally and most favorably to a claimant and to follow this decision would be tantamount to legislation, I am of the opinion that the Smith case is unsound to .the extent of allowing the credit contended for by defendant.

I therefore respectfully dissent.