text:
    FRAZIER v. MALONE et al.
    No. 7361.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 4, 1950.
    Rehearing Denied March 8, 1950.
    Gist, Thornton & Murchison, Alexandria, for appellants.
    James H. Williams, Colfax, for appel-lee.
   KENNON, Judge.

Alleging that the defendant, G. L. Malone, was engaged in the business of purchasing, cutting, hauling and shipping pulpwood in the Parish of Grant and that he was permanently and totally incapacitated as the result of injuries received on the 16th day of September, 1946, while in Malone’s employ, plaintiff filed this suit for compensation not exceeding four hundred weeks and for medical expenses.

In response to a plea of vagueness filed by defendants, Malone and his insurer, plaintiff alleged that the accident occurred on the H. S. Garlington tract of land in Grant Parish, Louisiana.

In a joint answer, defendant and his insurer set for that Malone was a purchaser rather than a producer of pulpwood products, purchasing same at a given price per unit or cord delivered on railway tracks, loaded and consigned to the International Paper Company. The joint answer denied that plaintiff was ever an employee of Malone and set forth that the relationship between plaintiff and Malone was that of seller and purchaser of pulpwood, or, in the alternative, that plaintiff was “an independent contractor or subcontractor of Malone.”

From a judgment of the District Court granting plaintiff compensation as prayed for, defendants prosecute this appeal.

At the time of plaintiff’s injury and for considerable time prior thereto, defendant Malone was engaged extensively in the production and sale of pulpwood to the International Paper Company, consigning same in car lots at various shipping points, including Tioga, Pollock and Bentley in Grant Parish, Louisiana. Plaintiff Frazier came to Malone in 1945 and made an arrangement to enter the pulpwood business for Malone and purchased several trucks from Malone, principally on a monthly basis. The ownership and registration of the trucks remained in Malone’s name and the parties signed a contract that for at least fifty-two weeks same should be used principally by Frazier in hauling pulpwood for Malone.

Defendants’ theory of Malone’s relationship with plaintiff Frazier is shown by paragraph 26 of the answer, which we quote below:

“Answering Paragraph Twenty-six of plaintiff’s supplemental petition, which has been filed herein and in answer to exceptions previously filed by these defendants and under an order of this Court to amend and amplify the allegations of plaintiff’s original petition, defendants aver that the H. S. Garlington tract of land, which is described in Paragraph Twenty-six in plaintiff’s first supplemental petition, was a tract of land, timber from which was purchased, paid for and controlled exclusively by the plaintiff herein, and that the only connection said defendant, Malone had with said timber tract was that, during the war years on account of the critical shortage of labor, defendant, Malone, made a contract with the War Department for the services of numerous war prisoners, which labor the said Malone sold the services of to various timber operators and others who required labor in cutting timber; the said plaintiff requested and engaged the services of said prisoner labor from said Malone to cut and stack plaintiff’s timbe/ in the woods on the described Garlington tract, and other property belonging to the said plaintiff; the said plaintiff bought the services of such prisoner labor from the said Malone on the basis of unit price per cord; and such wood as the prisoner labor cut from the timber land owned by the plaintiff and for the services of which labor the said plaintiff paid the said Malone, either directly or out of the purchase price for the pulpwood delivered to railroad cars.

“That after said wood was cut and stacked on said Garlington tract, the said Malone had no further connection therewith ; said wood, when subsequently agreed to be purchased by Malone, was loaded, hauled and delivered solely by the said plaintiff, his crew of men, his trucks, and that therefore the said plaintiff was in no manner an employee or even an independent contractor under Malone for the loading and hauling of said pulpwood, which he alleges he was hauling from .the Garlington tract at the time he was injured.”

A reading of the last sentence of the above quoted extract from defendants’ answer indicates that defendants would have the Court consider Frazier first in the category of a producer of pulpwood in which capacity he bought the services of prisoner of war labor from defendant Malone and that Malone “subsequently agreed” to purchase the pulpwood so produced and then made a contract (a sort of third agreement) with plaintiff to load, haul and deliver this pulpwood to the shipping point. However, the record discloses that there was but one continuing arrangement between Malone and plaintiff, which included the operation of purchasing, cutting, stacking, checking, loading on trucks, hauling, loading on the railroad cars and the billing of same to the International Paper Company.

During the months preceding the injury and during the month of the injury, plaintiff received from Malone cash payments of $90 per car loaded, with an occasional car paid 'for at the fate of $150 per car. The statements further show that he was credited, at intervals, with all the cord wood loaded into these cars on the basis of $8.70 per cord delivered in the cars during each weekly period for which the statements were issued. The statements showed, after deducting the $90 (in some instances $150) per car, the balance was credited to “prisoner pf war account.” Malone testified that he (Malone) paid the government for this PW labor on a cordage basis and in turn charged Frazier this amount plus an additional charge for Malone’s expense in furnishing the trucks and supervising foreman. He also stated that he charged to Frazier’s prisoner of war account such sums as he paid for timber on tracts from which Frazier cut pulpwood. The record is inconclusive as to the settlement of this PW account between Malone and Frazier.

It was while engaged in loading one of the trucks with pulpwood from what is referred to in the record as the Garlington tract that plaintiff was injured. On this tract, Malone made the initial contract with Garlington with a view of purchasing pulpwood. Frazier followed up this call and closed the trade. Malone, who had a contract with the Federal government for the utilization of prisoner of war labor, sent his trucks to a nearby Army camp and brought PW laborers to the Garlington tract where the pulpwood was cut, stacked and ■ counted under .the supervision of a foreman employed by Malone. The landowner was paid for his trees by two checks signed by Malone, payable to Frazier, which Frazier endorsed and delivered to Garlington. Frazier and men hired by him loaded the measured wood which had been cut by the PWs onto trucks, sold by Malone to Frazier, with the license and insurance still standing in the name of Malone. The pulpwood was then delivered on the railway car and consigned in Malone’s name to the International Paper Company.

Plaintiff often found tracts of timber which he purchased in Malone’s name for the purpose of producing pulpwood. In addition to furnishing money for purchase of wood on the stump, defendant Malone furnished plaintiff money with which to purchase pulpwood already cut and stacked and in some instances paid the landowners directly for pulpwood produced by them and bought on location by Frazier. Frazier in such cases would give the landowner a written order or note directing Malone to pay for the, pulpwood inspected and purchased by Frazier.

Under these and the other circumstances disclosed by a study of the record as a whole, we conclude that the actual ownership or legal title to the pulpwood was never vested in Frazier. Such possession as he may have exercised was in his capacity as an agent or representative of his employer and principal, Malone, whose agent and helper he was in the finding and purchasing of pulpwood, cut or uncut, and whose employee he was in the hauling of the wood and the loading and consigning of the pulpwood cars.

Malone was in fact the owner and operator of the over-all operation. He had the right to direct Frazier as to where he would haul wood from and to what point he should deliver same. Malone contracted with the government for the use of prisoner of 'war laborers whose hands handled the saws that cut the trees. Malone’s trucks carried these laborers to their place of work. Malone’s foreman supervised their activities and measured the wood their labors produced. Malone’s check for the price of this wood (through Frazier) was delivered to the landowner. Some of the trucks used in hauling the wood still stood, for the purpose of licenses and insurance, in Malone’s name. The cars into which the wood was loaded were billed as to. their destination in Malone’s name.

The fact that Malone, for his own convenience, or for the convenience of himself and Frazier, carried a portion of his operations on his own books in the name pf Frazier and paid Frazier, ostensibly at least, on the basis of so much per cord less the expenses of buying timber, and cutting timber, did not remove Frazier from the category of being an agent and employee of Malone.

The holding by this Court in the case of Collins v. Smith et al., 13 So.2d 72, 73, is applicable to the facts of the case before us insofar as ownership of the trucks and the payment by plaintiff of his own helpers is concerned. We quote from that case: “It has often been held by the courts of this state, in fact, it is now well settled, that in cases of the character of the present one where the terms of the engagement between the contractants are as they appear herein, the relation of employer and employee arises. Notwithstanding that the party obligated to do the hauling owns and uses his own means of transportation and hires and pays his own helpers, he is not an independent contractor within the meaning of that term as defined by the courts. The following cases are among the many so holding: Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87; Dick v. Gravel Logging Co., Inc., 152 La. 993, 994, 95 So. 99; Morgan v. Nelms, 5 La.App. 414; James v. Hillyer-Deutsch-Edwards, Inc., 15 La.App. 71, 130 So. 257; Lee v. Mark H. Brown Lumber Co., 15 La.App. 294, 131 So. 697; McKay v. Crowell & Spencer Lumber Co. et al., La.App. 189 So. 508; Litton v. Natchitoches Oil Mill, Inc., et al., La.App., 195 So. 638; McDaniel v. Federal Underwriters et al., La.App., 2 So.2d 289.”

The case before us is distinguishable from the case of Murphy v. Tremont Lumber Company, La.App., 22 So.2d 79, and other similar cases cited by defend; ants in that Frazier had no contract to process or haul wood from a designated or specified tract or tracts; Frazier had no contract to haul a specified number of cars of pulpwood or to haul wood for any specified period of time. On the contrary, his employment was from day to day or load to load and subject to control by Malone and to termination at the will of Malone.

The facts disclosed by the records do not sustain defendants’ contention that the relationship between plaintiff and. Malone was either that of seller and purchaser or that of principal and independent contractor.

The record sustains the District Judge’s finding as to plaintiff’s disability.

The judgment appealed from is affirmed, with costs.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    OWENS v. OWENS.
    No. 7449.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellant.
    Campbell & Campbell, Minden, for ap-pellee.
   TALIAFERRO, Judge.

This is a petitory action in which the plaintiff seeks to dispossess the defendant, his father, of ninety acres of land in Webster Parish, Louisiana, described as follows:

. “W y2 of the SW %, and the south 10 acres of the NE of the SW of Section 11, Township 19 North, Range 10 West”.-

This land with thirty acres adjacent, owned by the defendant, in the year 1934, was mortgaged by him to Federal Land Bank of New Orleans, Louisiana, for $1,-200.00. In April 1939, he was so much in arrears with the bank that foreclosure of the mortgage was threatened. The defendant appealed to plaintiff for financial assistance, and the situation was eased by the father conveying to the son by warranty deed, in notarial form, on April 19,1939, the NW % of the SW j4. The price of the sale as expressed in the act, was $100.00 cash and the assumption by the plaintiff of $625.00, “which is one-half of the Federal Land Bank mortgage due on the 120 acres, the Land Bank mortgage being $1,200.00”.

On September 19, 1942, the defendant executed another deed to-the plaintiff whereby, he sold and conveyed the other fifty acres involved herein. The price of this sale is declared to be $1,440.00, of which amount $440.00 was in cash to the vendor to enable him to discharge financial obligations to that extent to others, “and for the balance of the said purchase price vendee assumes to pay Federal Land Bank of New Orleans the amount of $1,000.00, being the approximate balance due * * * under that certain mortgage executed by Dennis Owens on March 6, 1934, in the original amount of $1,200.00 * * * and secured by mortgage on the within described property and other property, * * * ' and this obligation on the part of the vendee includes previous obligation on his part as shown by deed from Dennis Owens in favor of the vendee”, etc.

Possession under neither of the said deeds was delivered to plaintiff. The defendant actually lived upon the thirty acres not conveyed. So far as needs be here stated, the defendant resisted the suit on the following grounds, viz:

1. That the first deed signed by him, wherein the forty 'acres were declared to be conveyed, was not in reality intended to be a sale of the land, but a mortgage;

2. That the second deed v.as signed and executed by him 'through “mistake, error and under duress, it not being the intention of respondent to deed said property to .plaintiff.”

The Court rejected the defenses urged by the defendant and decreed plaintiff to be the owner of the land and entitled to the undisturbed possession thereof. Defendant appealed. The order of appeal was signed in chambers. The scope of the appeal was, in petition' therefor, limited to relief not prayed for by the appellant in his answer to the merits. It is said in the petition, for the order of appeal, viz: “Comes Dennis Owens, made Defendant and Plaintiff in reconvention * * * for the purpose of appealing from the judgment signed by this Honorable Court on the 30th day of June, 1949, with respect to failwe of said judgment to provide for payment'in full, of cash and other considerations', to Dennis Owens, mentioned in deeds referred to in said judgment”: No deeds are mentioned or referred to in said judgment.

The record discloses that the balance due on the mortgage to Federal Land Bank was paid off in full by the plaintiff on October 15, 1945, many years prior to the expiration of the term stipulated for its payment.

Appellant is in error with regard to a reconventional demand. None was set up in his answer. He prayed that plaintiff’s demand be rejected;’ that the deed to the forty-acre tract be decreed null and void, or in the alternative, be reformed so as to evidence a mortgage, and that the deed to the fifty acres be decreed null and void. To no extent did he pray, by reconvention or in the alternative, for an adjustment of the financial differences, if any, between' him and the plaintiff, arising from the two deeds involved herein. It is obvious that appellant was not entitled to an appeal on the grounds alleged in his application therefor, and, for this reason, the appeal is hereby dismissed at his cost.


text:
    SIMMONS v. HOLMAN et ux.
    No. 7496.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.

      Bolin, Lowe & Fish, Minden, for appellants.
    Drew & Drew, Minden, for appellee.
   TALIAFERRO, Judge.

The automobiles of plaintiff and J. A. Holman collided the afternoon of June 7, 1949, on the highway between Sarepta and Cotton Valley, in Webster Parish, Louisiana, and this suit by plaintiff to recover the value of his car is one of the results.

Plaintiff, driving his own car, a 1939 Plymouth Coupe, was going southerly. The Holman car, a Studebaker, being driven by Mrs. Holman, was traveling •northerly.

The suit is against both husband and wife on the theory that Mrs. Holman was, at the time of the accident, on a mission for her husband or for the benefit of the community of acquets and gains between them.

Plaintiff alleged that he was driving his car at a moderate rate of speed, on his side of the highway, when he observed the other car coming .from over a hill at an excessive rate of speed; that the driver, for some reason, lost control of the car, zigzagged across the highway and violently collided with the coupe when, at the time, its right wheels were well on 'the shoulder of the road where it had been driven in an effort to avoid the impending collision. '

Defendants resist the suit on the ground that the accident occurred solely from plaintiff’s negligence. They aver that when Mrs. Holman’s car came from over the hill she observed plaintiff’s car approaching with left wheels at least two feet east of the center line of the road; that she sounded the horn loudly twice without effect upon plaintiff; that she then applied the brakes and because the surface of the highway (black-top) was very slippery from rain that afternoon, the car skidded and collided with the coupe, then partially on her side of the medial line. Plaintiff’s action in occupying a portion of her side of the highway and not returning to his side thereof, after the horn was sounded, defendants charge to have been the cause of the accident.

Defendant J. A. Plolman reconvened and sued plaintiff for the expense bill incurred in repairing his "car.

There was judgment for plaintiff for $625.00. Defendants appealed. Plaintiff’s answer to the appeal asks for increase in the award to the amount sued for.

In original answer, the defendants did not plead plaintiff’s contributory negligence as a defense to the suit, but when the case was called for trial an amended petition embodying such a plea was tendered by them for filing, to which plaintiff’s counsel objected on the ground that it changed the issues and came too late. The objection was sustained. The tendered amendment is in the record as part of a special bill of exceptions. Error in the ruling is complained of and argued here.

Whether the ruling be correct or not, as we view the record, is immaterial to the final result in the case. The accident happened either as alleged by plaintiff or as alleged by the defendants. No objection whatever was offered to any of the testimonial proof. All facts were fully developed. They negative the suggestion that plaintiff was negligent to any extent.

The decided preponderence of the testimony supports plaintiff’s version of the accident. He and R. A. Smith, who was riding with him, testified that his car was being driven on its proper side of the road and at a lawful speed when Mrs. Holman came into sight at a rapid speed from behind a rise in the highway, between three hundred and four hundred feet away; that evidently she undertook to reduce her speed through application of the brakes, as the car began to zigzag over the road, first to the left, then to its right, and on its second swerve to the left it rammed plaintiff's car at the time partly on the gravel shoulder of the highway, and moving slowly-

The left front fender of defendants’ car struck the coupe near the forward side of the left door. It proceeded a few feet sidewise, turned over, and rested in the ditch with all four wheels up in the air. It was so 'badly wrecked and damaged as to remove it from hope of repair.

There is other testimony in the record to corroborate the. contention that plaintiff’s car was partly on the shoulder when struck.

Mrs. Holman’s testimony tracks the facts of the defense urged herein. She is positive that she sounded her car’s horn after discovering plaintiff’s car astride the medial line and that there was no response thereto. Plaintiff and Smith are sure the horn was not sounded as they did not hear it.

Defendants also rely upon the presence of glass and chrome about the center of the road to support the charge that plaintiff was across the center line. This came from her car. The location of these fragments has little probative weight as the glass, etc., flew wide at moment of the impact. In addition, had the coupe been astride the line when the collision occurred, as contended, the glass and chrome would have been farther east of the line than defendants’ witness says they were.

Loss of control of a motor vehicle, due to surface conditions of the highway, is not invariably evidence of negligence; but when caused by sudden application of the brakes, when circumstances do not require that action, negligence will be imputed. Mrs. Holman admits the slippery road surface conditions and that immediately after sighting the plaintiff’s car, then quite a distance away, she applied the brakes. Even though the coupe had been astride the medial line at that instant, this fact would not have, under the circumstances, justified the forceful application of the brakes. All motorists know the antics a car will usually perform on a slippery black top road when the brakes are suddenly and forcefully applied.

The conclusion reasonably arises that Mrs. Holman, on seeing the coupe approaching (and we believe on its proper side of the road) did what most motorists would have done, viz: tried to reduce her speed, but due to too much force on the brakes or lack of equal strength in them, the car zigzagged and the accident followed.

The more serious contest revolves around the question of damages. The award consists of two elements, viz: $25.-00 for hauling the coupe to the City of Shreveport, fifty miles or more distant, and the value of the coupe at time of the accident. It is not seriously questioned that it would have been unwise to have attempted its repair. For all practical purposes it was totally destroyed.

Plaintiff paid $2.50 to have the coupe removed a short distance from the locus of the accident to a farmer’s premises not far away, where it remained for a night. Plaintiff transported it next day in his own truck to Shreveport. The record is wholly barren of evidence as regards a reasonable charge for this trip. No e'ffort was made to prove a fair compensation for it.' Plaintiff obviously fixes it at $22.50, but we are not warranted to .accept his bare allegation as proof of the value of the trip.

The coupe was bought new in 1939 for an amount something less than $1,000.-00. Without repairs and replacements it would not have had a cash value, when destroyed, equal to more than one-fourth of this amount. Plaintiff testified, and he is to no extent contradicted, that three months prior to the accident he spent over $800.00 to have the coupe completely overhauled. It was provided with new upholstering, motor, other major parts, and was repainted. Since these repairs, etc., it had been driven 5,000 miles. Used car dealers were of the opinion that its value when destroyed was not in excess of $400.00. The trial judge likely tried to strike a fair average of value as between plaintiff’s opinion and that of these dealers, taking into account the amount expended for repairs, etc. Used car dealers are ultra conservative in their estimate of the value of used cars when put on the market. They take no chances. All things considered, we are not prepared to disagree with the value fixed by the lower court.

For the reasons herein assigned, the judgment from which appealed is amended by reducing the amount therof to Six Hundred Two and 50/100 ($602.50) Dollars, and, as thus amended, it is affirmed. Appellee is cast for costs of appeal. All other costs shall be paid by the appellants.


author: HARDY, Judge.

text:
    BROWN v. HARVEY.
    No. 7488.
    Court of Appeal of Louisiana. Second Circuit.
    April 6, 1950.
    Floyd D. Culbertson, Jr., Minden, for appellant.
    D. W. Thomas, Minden, for appellee.
   HARDY, Judge.

Plaintiff sued to recover the sum of $196.00 representing a cash loan made to defendant, which sum was alleged to be past due and unpaid. A default judgment was rendered in due course by the Judge of the City Court of Minden, Webster Parish, Louisiana, from which judgment defendant has appealed.

In view of the fact that counsel for defendant has not favored this court, either by oral argument or the filing of a brief, we are in doubt as to the grounds upon which the appeal is predicated. The only clue as to any particular specification of error which we have been able to discover appears in defendant’s petition for orders of appeal in which it is set forth that defendant was not properly cited. Examination of the record fails to disclose any substantiation of this objection.

On the basis of our examination of the record before us, we find no error in the judgment, and, accordingly, the same should be affirmed.

Counsel for plaintiff has filed in this court motions to dismiss the appeal, based on the insufficiency of the bond and failure to timely file same. However, inasmuch as we have reached the conclusion that the judgment should be affirmed, we perceive no need for a consideration of these exceptions.

The judgment appealed from is affirmed at appellant’s cost.


author: KENNON, Judge.

text:
    PACIFIC FINANCE CO., Inc., v. GRANITE STATE FIRE INS. CO.
    No. 7438.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.
    Vernon W. Woods, Shreveport, for appellant.
    Morgan, Baker & Skeels, Shreveport, for appellee.
   KENNON, Judge.

Alleging that it was the authorized agent of Ben Nears, Jr., whose automobile had been totally destroyed when the occurrence of a flat tire precipitated the machine into a ditch and that the defendant company had issued a policy of collision insurance covering the Nears machine, plaintiff filed this suit for $650, being the value of the automobile insured by defendant less $100 deductible for each collision.

The District Court sustained an exception of no cause or right of action under a provision of the policy excluding coverage in the event the insured automobile was subject to any mortgage, etc., “not specifically declared and described in the policy.” Plaintiff has appealed.

As a basis of our discussion we quote below paragraphs seven and eight of plaintiff’s petition:

“7. Shows that the automobile insured under the above policy of insurance was purchased by Ben Nears, Jr., on or about the 17th day of May, 1948, from G. C. Dykes, a resident of Bossier Parish, Louisiana, and that as part of the consideration of the sale Ben Nears, Jr. gave his promissory note in the amount of $692.16, payable to the order of the vendor, which note was thereupon endorsed for value to petitioner herein, Pacific Finance Company, Inc., which said note was secured by a chattel mortgage on the automobile. Showing that one Isaac Clarkson had affixed his signature to the note as an accommodation indorser.
“8. Petitioner shows that at the request of Ben Nears, Jr., the same having been made a condition precedent to the financing of the purchase of the automobile, your petitioner contacted the defendant company through its authorized agent, and secured the issuance of the above policy of insurance, at which time your petitioner made a complete disclosure- of the facts concerning the purchase and financing of the automobile.”

For the purpose of passing on the exception of no cause or right of action, statements contained in a petition are accepted as true. The first paragraph above quoted sets forth that the owner had executed a note secured by chattel mortgage on the automobile insured by the defendant -and that the plaintiff finance company secured the issuance of the policy of insurance after making a “complete disclosure” of the existence of the mortgage, etc., to the “authorized agent” of the defendant insurance company.

The policy contains a proviso excluding coverage “where the automobile is subject to any * * * mortgage * * * not specifically declared and described in this policy.” The existence of plaintiffs mortgage note was not- described in the policy and we are therefore called upon to decide whether the fact that defendant’s agent had full knowledge of the existence of the chattel mortgage at the time he received the application for the collision policy and at the time the policy was issued by him as agent for his company, constituted a waiver of -the above quoted printed condition in the policy.

The case of Gitz Sash Factory, Inc., v. Union Insurance Society of Canton, Ltd., 160 La. 381, 107 So. 232, is directly in point. The Louisiana Supreme Court in that case, 160 La. at page 385, 107 So. at page 233, quoted with approval the following : “ ‘So knowledge of the agent at the issuance of the policy that the property was encumbered, and the premium was accepted, obligates the insurer, even though no written consent is indorsed on the policy, as provided therein, * * *.’ ”

This holding was followed in the case of Willhite v. Hartford Fire Insurance Co., 8 La.App. 538. Further authority on the point that the conduct and declarations-of an agent of: an insurance company may constitute a waiver, notwithstanding provision in -the policy requiring that waivers be in writing, etc., is found in the case of Monroe Air Park No. 1, Inc. v. American Aviation & General Insurance Co., La.App., 41 So.2d 795.

Defendant, while citing no Louisiana authorities, has cited the case of C. E. Carnes v. Employers’ Liability Assurance Corporation, 5 Cir., 101 F.2d 739, 742. Since the general rule is that the Federal Courts, in cases arising out of -the several states, follow the jurisprudence as established by the Supreme Court in the state involved, it is not necessary that we decide whether there is a conflict between the Federal, Carnes, case and- .the Gitz Sash (Louisiana Supreme Court) case. However, a reading of the extract in defendant’s brief indicates that the cases are distinguishable inasmuch as the Court held in the Carnes case that the knowledge of the agent that the insured was hauling butane gas on the truck insured was not sufficient to , bind his principal in the face of the policy provision that such risk was not covered. There the Federal Court noted that the doctrine of waiver cannot be invoked to bring “within the coverage of the policy risks not included or contemplated by its terms.” (Italics ours.)

As another example of the, principle of the Carnes case, that the doctrine of waiver cannot be invoked to extend coverage, an agent might, in issuing and collecting a premium on a fire and theft policy, erroneously make the statement that the policy would also cover collision or windstorm damage. In such case, if no such liability was assumed under the policy provisions, the doctrine of waiver could not successfully be invoked.

In the District Court; defendant made the further contention that plaintiff was without right to bring this suit and stand in judgment under its power of attorney from the owner of the automobile. Since no mention of this issue was made by-defendant’s attorney in brief or argument, we consider that defendant..has'abandoned its appeal from the judgment of the District Court against it on that point.

■ The judgment appealed from is reversed and the case is remanded to-the District Court for further proceedings consistent with this opinion. Costs of appeal to he borne by defendant. Other costs to await the final outcome of the litigation. ‘


text:
    AUCKLEY v. ROBBINS.
    No. 7483.
    Court of Appeal of Louisiana. Second Circuit.
    April 5, 1950.
    Gahagan & Pierson, Natchitoches, for appellant.
    Vincent Hazleton, Alexandria, for ap-pellee.
   HARDY, Judge.

■ This is a suit in which plaintiff seeks to recover the sum of $383.57 representing cost of repairs'to his 1946 model Plymouth Coach, allegedly resulting from a collision with a truck owned by defendant and operated by his employee. After trial there-was judgment for plaintiff as prayed, from which judgment defendant has appealed.

The accident occurred in broad daylight at or about the hour of 4:00 P.M. on July 27, 1948, on U. S. Highway 71 at a point some three or four miles south of Clarence, Louisiana. At the time plaintiff was driving -his Plymouth automobile south along the highway at a speed of 45 to 50 miles per hour and was overtaking defendant’s 1% ton, stake body, 1946 Ford Truck, which was also being driven south hy one Junior Lee Dixon, a young Negro employed by defendant.

Plaintiff alleges that after signaling, by sounding his horn, he engaged in the maneuver of passing defendant’s truck and as his car drew abreast of said truck the driver thereof suddenly, without warning and without signal of his intent, turned the truck sharply to the left across the path of plaintiff’s car. Plaintiff testified, on trial of the case, that it was impossible to avoid the collision but that, in the effort to minimize the effects thereof, he turned his car to the left and by this action prevented a full head on crash into the side of the truck. It is apparent from the testimony that the right front and side of plaintiff’s car came in contact with that portion of the truck between the cab and the rear end in a sort of sideswiping or angling impact.

Numerous charges of negligence are made by plaintiff, the most material being that the truck was not equipped with, a rear view mirror; that the vehicle’s brakes were defective, which caused the left rear wheel to grab, thus pulling the truck to the left upon application of the brakes; that the truck driver failed to heed plaintiff’s warning signal, neglected to make proper observation and lookout, and' failed to signal his intention of making a turn.

All charges of negligence are denied by defendant, and, in the alternative, contributory negligence on the part of plaintiff barring recovery was specifically set forth, among which charges were those of driving at an excessive speed; failure to keep a lookout; failure to keep his car under proper control; driving without proper brakes; failing to see and heed the signal of the truck driver giving warning of his intention to turn.

As is usual in cases of this nature, the testimony of the witnesses for plaintiff and defendant is in violent conflict. Plaintiff was accompanied by a young girl, who was seated next to him on the front seat, and his wife and baby, who were on the rear seat. The driver of defendant’s truck was unaccompanied. The only eye witnesses to the accident who testified on trial were the plaintiff and his wife. However, certain written statements, apparently made by the driver of defendant’s truck to insurance representatives, were admitted in evidence, it being stipulated that the said driver, if present in court, would testify substantially in accordance with the contents of said statements. It was further stipulated on behalf of plaintiff that the truth of the contents of the statements was not admitted.

The testimony of plaintiff and his wife is clear and unequivocal and preponderates over the statements of defendant’s truck driver. A number of other witnesses tendered on behalf of defendant testified with respect to their observation of physical surroundings and conditions on the highway at the scene of the accident. The effect of this testimony is weakened by the fact that most of these witnesses appeared on the scene some considerable time after the occurrence of the accident and that their observations were not made with any considered accuracy.

We think it is established beyond any question that defendant’s truck was not equipped with a rear view mirror, and despite the statement of the driven that he made observation to the rear for overtaking or approaching vehicles, we do not think this action has been satisfactorily established. Admittedly, the view for a considerable distance was clear and unobstructed, and if the driver, in fact, had niade proper and reasonable observation before beginning his turning movement, certainly he could and should have seen the approach of plantiff’s automobile, which at that time was in close proximity to the truck.

The principal point of dispute centers about the question as to whether the truck driver made any signal of his intention to turn at a time when such warning would have been effective. Plaintiff and his wife both testified positively that the truck driver made no signal of any kind and that he turned the truck into the path of plaintiff’s car without warning. This is denied by the statement of the truck driver, who says he made an arm signal, and the attempt is made to Support this statement by two witnesses for defendant, who testified that plaintiff made the statement shortly after the accident that he couldn’t tell from the signal what the driver intended and assumed that it was a stop warning and not a turn. Plaintiff stoutly denied having made any such statement.

In connection with this question it is pertinent to observe that the mere making of a signal, if in fact such was done, is not in itself sufficient to discharge the obligations of the driver of a motor vehicle and to relieve him from the imputation of negligence. There would be little merit in making a signal for a left turn and beginning the turn into the direct path of an overtaking vehicle. It is required that a driver not only give the proper signal but that he make careful observation before turning out of his lane of travel. As has been many times pointed out by the courts of our State, a left-hand turn is a particularly dangerous maneuver and requires the exercise-of the utmost caution.

It is established that the driver of defendant’s truck was making a turn into an intersecting gravel road, which led to defendant’s mill. Despite the dispute as to the existence of warning signs with respect to the intersection, we are satisfied that such intersection was poorly marked, if at all, and from the testimony we are further of the opinion that the intersection itself was obscured by high grass and weeds and there did not exist any apparent signs which would have indicated the need for extra precaution on the part of the driver engaged in passing a vehicle at the point. However this may be, we do not think it a controlling or even a persuasive factor.

There appears to be no question as to the negligence of the driver of defendant’s truck in failing to make proper, timely and thorough observation for traffic approaching from the rear, and this negligence, in our opinion, was the sole and proximate cause of the accident.

Defendant has failed to establish by the requisite preponderance of the evidence any of the charges of contributory negligence asserted against plaintiff.

Careful consideration of the record before us fails to indicate error of any degree, manifest or otherwise, in the judgment of the lower court.

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