author: McCALEB, Justice.

text:
    216 La. 537
    BARDWELL et al. v. PARISH COUNCIL OF PARISH OF EAST BATON ROUGE.
    No. 39710.
    Supreme Court of Louisiana.
    Dec. 30, 1949.

      Sanders R. Cazedessus, Emile N. Weber, Victor A. Sachse, Baton Rouge, for defendants and intervenors-appellants.
    Fred G. Benton, George Mathews, Edward Donald Moseley, Albritton, Ware, Litton & West, Watson, Blanche, Fridge, Wilson & Posner, Brumfield, Hebert & Rush, Daggett & Daggett, Sanders, Miller, Downing & Rubin, Jess-Johnson, Byron Kantrow, Roland Kizer, J. Burton Le-Blanc, Jr.; Clint Pierson, A. J. Spedale, Baton- Rouge, for plaintiffs and appellees.
   McCALEB, Justice.

Acting under authority of section 3(a) of Article 14 of the Constitution (added by Act No. 389 of 1946 which was approved on November 5, 1946), the people of the Parish of East Baton Rouge adopted a plan of government proposed by a “City-Parish Charter Commission” created under the constitutional amendment. The validity of this “plan of government” was sustanied by this court in State v. City of Baton Rouge, 215 La. 315, 40 So.2d 477.

The constitutional amendment, Section 3(a) of Article 14, in providing for the creation of a new government, declares, among other things, that “(4) The plan of government shall be subject to amendment by election of the people as provided therein” and, in conformity, the charter subsquently adopted provided in Section 11.09 thereof that:

“Amendments of this plan of government may be proposed by majority vote of all the members elected to the parish council or by a petition containing the full text of the proposed amendments signed by qualified. voters of East Baton Rouge Parish in number equal to ten per cent of the number of votes cast for sheriff a-t the last preceding election of parish officers and filed in the office of the parish clerk. A proposed amendment shall be submitted by the parish council to the qualified voters of the parish at a special election to be called and held by the parish council not less than sixty or more than ninety days after the passage of the amendment by the parish council or the filing of the petition; * * * ”

On October 19, 1949, a petition was filed by 212 qualified voters, allegedly more than ten percent in number of the votes cast for sheriff in the last preceding election, to amend the plan of government in numerous particulars. Upon receipt, the council referred the petition to the parish attorney for study, opinion and comment and, -subsequently, the latter reported that the proposed amendments wou-ld, if adopted, be illegal and unconstitutional for divers reasons,' After considering this opinion, the parish council, believing that it was bound to call an election by the mandatory provisions of Section 11.09 of the plan of government, formally declared its intent to do so and instructed the parish attorney to prepare the necessary resolution. Simultanously, however, it publicly declared that it had been advised of the illegality and unconstitutionality of the proposed amendments; that it was reluctant to see the people subjected to the cost and trouble of a useless election and that the responsibility must fall upon the leaders proposing the changes. The parish attorney prepared the resolution, calling the election for January 17, 1950, but, on the eve of the meeting at which it would have -been adopted, the council was restrained by order of the district court which had -been issued on the application of plaintiffs herein, 27 in number, residents ■and taxpayers of East Baton Rouge Parish, petitioning to enjoin the calling and holding of an election upon the proposed amendments on .the ground that they were illegal and unconstitutional. Plaintiffs also sought, in the alternative, a declaratory judgment stating the illegality and unconstitutionality of the proposed amendments.

The parish council resisted plaintiffs’ demand by interposing various exceptions, in which were included a jurisdictiona-l plea, exceptions of prematurity and no right or cause of action. And, before the trial, certain other interested citizens and taxpayers filed an intervention joining the parish council in opposition to plaintiffs’ demands. These intervenors, alleging that their presence in the suit was necessary in order that the court might have a proper presentation of the issues, adopted substantially the same grounds of defense advanced by the parish council.

After hearing the matter, the court overruled all exceptions, save the exception of no right or cause of action which was sustained only insofar as plaintiffs’ alternative prayer for a declaratory judgment was concerned. And, on the merits, the judge found, for reasons orally assigned, that the proposed amendments would, if adopted, be invalid and unconstitutional. Accordingly, he permanently enjoined the parish council from calling or holding “any election whatever upon the proposed amendments on January 17, 1950, or upon any other date.” The council and the in-tervenors. have appealed from the decision.

Immediately after the appeal was lodged here, the interested parties filed a joint motion for submission of the case on briefs as provided by Section 8 of Rule IX and request has been made for an early decision. In this connection, we note that, whereas the parish council is appealing, the brief of the parish attorney demonstrates that the council is acquiescing in the judgment below and, in truth, seeks an affirmance. On the other hand, the intervenors vigorously protest and, for purposes of our discussion, they must be considered as the real parties appellant.

An examination of the pleadings reveals that, perhaps, the most serious matter presented for decision is the plea that the court is without jurisdiction to grant an injunction in a matter such as this. This jursdictional plea is grounded on the same predicate as the exception of prematurity but probably the latter is the more appropriate term, as it is based Upon the theory that an action for an injunction is not cognizable in equity unless there is a showing of present or imminent irreparable injury. If this plea is well founded, it ends the case inasmuch as the alternative demand for a declaratory judgment was dismissed and plaintiffs have neither appealed nor answered the appeals taken herein. See Succession of Babin, 213 La. 950, 35 So. 864; Westwego Canal & Terminal Co. v. Louisiana Highway Comm., 189 La. 870, 181 So. 429; Betz v. Riviere, 211 La. 43, 29 So.2d 465.

In.. determining whether the plea of prematurity or lack of equity jurisdiction is well taken, two established principles must be considered. They .are the general rule that equity will not interfere with a municipal body in the exercise of powers of a legislative character, see Harrison et al. v. City of New Orleans, 33 La.Ann. 222, 39 Am.Rep. 272; State ex rel. Behan et al. v. Judges, 35 La.Ann. 1075; New Orleans Elevator Ry. Co. v. Mayor, etc., of New Orleans, 39 La.Ann. 127, 1 So. 434; Connell v. Commission Council, 153 La. 788, 96 So. 657; Wachsen v. Commission Council, 162 La. 823, 111 So. 177 and Durrett Hardware & Furniture Co. v. City of Monroe, 199 La. 329, 5 So.2d 911, 140 A.L.R. 433 and the doctrine that an injunction will not issue to prevent the holding of an election (see 32 Corpus Juris, Section 101, 402 ; 43 C.J.S., Injunctions, § 115; Roudanez v. Mayor, etc. of New Orleans, 29 La.Ann. 271; Town of Ponchatoula v. Police Jury, 120 La. 1040, 46 So. 16 and Dubuisson v. Board of Sup’rs of Election, 123 La. 443, 49 So. 15; Compare Roy v. Board of Supervisors of Elections, 198 La. 489, 3 So.2d 747.

The above stated rules are not without exception. If the threatened action of a municipal council is in direct violation of a prohibitory law, equity will enjoin, even though no irreparable injury is shown, see Connell v. Commission Council and Wachsen v. Commission Council, supra, but this is the only instance that judicial intervention has been permitted in this State. See Durrett Hardware & Furniture Co. v. City of Monroe, supra. And, in cases involving the calling and holding of an election under certain conditions, a court of equity will restrain those ordering the election where the preliminary conditions necessary for the election call have not been fulfilled and the municipal body has either called or is threatening to call the election. See McQuillin on “Municipal Corporations” (3rd Ed.) Vol. V, Section 16.68 and cases cited in support of the text.

It is apparent that the rule that a court of equity will not enjoin a municipality from passing an ordinance is inapplicable in the j-nstant matter as plaintiffs are not seeking to restrain the parish council from legislating but are attempting to have the court restrain that body from performing its administrative duty in calling and holding an election to amend the parish-city charter on the ground that the proposed amendments are illegal and unconstitutional. Plaintiffs do not claim that any of the preliminary steps and conditions, i. e., requisite number of signatures of voters, etc. have not been complied with by the parties petitioning for submission of the initiative and referendum measure but only that the amendments, if passed, would be illegal and unconstitutional. In these circumstances it is plain that the general rule (that injunction will not be granted to prevent the holding of an election) obtains and plaintiffs’ suit must be dismissed as premature.

In fact, the situation here presents an exact parallel with that in Roudanez v. Mayor, etc. of New Orleans, supra. That was a suit by a number of citizens and property holders of New Orleans in which they sought to enjoin the Mayor and administrators from holding a popular election, authorized and required by Act No. 20 of 1876, to decide whether or not a tax of one-half of one percent should be collected annually for four years for the use and benefit of the Pacific Railroad Company. The grounds on which plaintiffs demanded relief were that the legislative act and the tax proposed therein were violative of the State and Federal constitutions. An injunction was granted by the lower court but, thereafter, the Pacific Railroad intervened and moved to dissolve it as being prematurely and improvidently sued out. The court sustained the motion and dissolved the injunction. The plaintiffs appealed. In affirming the judgment holding the action premature, .the court stated that the danger apprehended by the plaintiffs was too remote and contingent to form the basis of a proceeding to avert it and that

“ * * * It will be time enough for the plaintiffs to complain when their rights are actually invaded, or when danger to their persons or property is imminent and impending. There are too many contingencies at present between them and danger to justify them in resorting to law. Act No. 20 may yet be repealed or the tax proposed may be voted down, or plaintiffs may cease to be taxpayers, or the railroad corporation may cease to exist, or forfeit its charter.
“It seems to us that the plaintiffs have set up, and now ask us to protect them against, a mere possible adversary, which at present is without substance or power to harm them.
“Even if it be conceded that the levy of the tax contemplated by said act would be unconstitutional (upon which we of course express no opinion), we do not see that that fact would render the holding of the election unconstitutional * * (Italics by the Court)

To the same effect is Dubuisson v. Board of Supervisors of Election, supra. There, plaintiffs, residents and taxpayers of the Parish of St. Landry, sought to enjoin the holding of an election under Act No. 53 of 1908, which was an act to create the Parish of Evangeline, on the ground that the statute was unconstitutional. Certain other taxpayers intervened in the suit and opposed the injunction, pleading that the court was without jurisdiction to entertain an action of that character and that the proceedings were premature. The injunction was granted and, upon the judge’s refusal to dissolve it, the intervenors applied for and secured writs of certiorari and prohibition. After a hearing in this court, it was held that the plea of the intervenors should have been sustained and the suit was dismissed as premature. In support of the conclusion, the court stated that the matter was governed by the doctrine of the Roudanez and Town of Ponchatoula v. Police Jury, 120 La. 1040, 46 So. 16, cases and High on “Injunctions” (4th Ed.) Vol. 2, Section 1286. The court further observed that, while it cannot he doubted that the courts have jurisdiction to declare legislative acts unconstitutional [123 La. 443, 49 So. 17],

In the case at bar, however, we are not dealing with a statute which has, proprio vigore, the force and effect of law, but with a legislative proposition which has been referred to the people for their final ratification. The proposition may be voted down by the people, and may never become a law susceptible of enforcement.”

In defending the action of the trial court in overruling the plea of prematurity, the parish attorney proceeds on the theory that, since the parish council is performing purely a ministerial duty in calling the election, an injunction to restrain it from doing so will lie — because the doctrine that equity will not interfere with proposed action of a municipal council is limited in its scope to matters where the council is attempting to legislate. In arguing thus, it is, of course, manifest that the parish attorney must perforce overlook and, indeed, ignore the equally well-settled -rule, and the cases above cited in support of it, that an injunction will not lie to restrain a public body from performing its ministerial duty in submitting an initiative or referendum measure.

But, even if the rule depended on could be said to be pertinent, the argument advanced by the parish attorney could not be sustained. This is because the rule that a court of equity will not interfere with proposed acts of legislation by a municipal council is, a fortiori, applicable to initiative and referendum elections for, in those elections, it is the people themselves who legislate. It can hardly be gainsaid that, when an initiative or referendum measure is submitted under a legislative act or provisions of a municipal charter, a favorable vote by the people is not legislation. In truth, it is direct legislation, a power reserved to the people in contrast to a right granted to them. See McQuillin, “Municipal Corporations” (3rd Ed.) Vol. V, Section 16.49, pages 242-244.

Thus, it is clear that equity will not intervene in cases such as this to restrain submission where the threatened injury to claimants is not irreparable but obviously remote. Conversely, it is to be noted that a different rule has been recognized by some courts, including this one, in cases where a municipal council has refused to submit the initiative or referendum measure to the people and electors have sought to mandamus the body to compel a compliance with its ministerial duty. In such instances, it has been held that the writ will be denied if it is shown that the ordinance, if adopted, would be illegal or unconstitutional. See State ex rel. Bussie v. Fant, La.Sup., 43 So.2d 217, and authorities there cited.

The judgment appealed from is- reversed and plaintiffs’ suit is dismissed at their cost.

      . This allegation was founded on statements, released by the parish attorney to the press, that the council would offer merely a token resistance to the suit.

      . In ruling that the plea of prematurity is not well founded, the trial judge followed a statement contained in American Jurisprudence, Vol. 28, Section 36, Verbo “Initiative, Referendum and Recall”, based on language used in Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 94 A.L.R. 804, that the majority view is that, where the voters are submitted any proposition which, if- passed, would clearly and palpably violate either the Federal or State Constitution, equity may intervene and restrain the submission. It is to be doubted that the statement of the text of American Jurisprudence represents the majority view. (See contra, McQuillin “Municipal Corporations (3rd Ed.) Vol. V, Sec. 16.69 and cases there cited). In any event, the view is directly contrary to the jurisprudence of this state as set forth in the opinions in Roudanez v. Mayor, etc. of New Orleans, Town of Ponchatoula v. Police Jury and Dubuisson v. Board of Sup’rs. of Election, supra.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    216 La. 551
    BLANCHARD et al. v. NORMAN-BREAUX LUMBER CO., Inc.
    No. 39154.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Jan. 9, 1950.
    Leonard Greenburg, Houma, for plaintiffs and appellees.
    Bauer & Bauer, Franklin, and Pettigrew & Duval, Plouma, for defendant and appellant.
   HAWTHORNE, Justice.

Plaintiffs-appellees, Howard J. Blanchard and Charles E. Tanner, alleging themselves to be the owners in indivisión of a small tract of land having a width of 2.95 arpents by a depth of 25 arpents, situated on Bayou Black in the Parish of Terre-bonne, instituted this suit against the defendant, Norman-Breaux Lumber Company, Inc., to recover damages for an alleged trespass and the cutting and removal of the cypress and túpelo gum timber from- the northern or rear five arpents of the tract, containing approximately 12 acres.

Plaintiffs in their petition alleged that the defendant committed the trespass and cut and removed the timber in moral and legal bad faith, and prayed for judgment, among other things, for the manufactured value of the lumber produced from the timber so cut and removed.

Defendant in its answer admitted the cutting and removal of the timber from the northern five arpents of the tract, but denied the trespass and set up by way of defense that it owned the timber, and set out its -chain of title thereto.

Defendant called its vendors in warranty. A rule to show cause why the call in warranty, included in, and made a part of, defendant’s answer, should not be dismissed was made absolute by the district court, and accordingly the defendant was denied the right to call in warranty its vendors, the warrantors were never cited or made parties to this suit, and the case proceeded to trial between the plaintiffs and the defendant.

After trial on the merits, the lower court rendered judgment holding that defendant was in legal and moral bad faith and awarding damages to the plaintiffs for the manufactured value of the timber in the sum of $11,920.62. Defendant has appealed.

We have concluded that the district judge erred in refusing to allow defendant to call its vendors in warranty. These are the facts of this case insofar as they are pertinent to this decision:

On May 29, 1901, Marcus M. Levy conveyed to Dibert, Stark & Brown Cypress Company, Ltd., “all the timber” on the northern or rear five arpents of the tract now owned by plaintiffs. Subsequently the shareholders of this corporation acquired all the property belonging to it in an act of transfer, liquidation, and dissolution of the corporation by deed recorded on December 23, 1938. On July 14, 1939, these shareholders conveyed by warranty deed to the defendant herein for a consideration of $80,-000.00 all the “standing and down cypress and túpelo gum timber suitable for manufacture into lumber”, etc., on a large tract of land which included the northern five arpents of the plaintiffs’ tract. This deed was recorded on July 25, 1939, C.O.B. 123, Folio 357 et seq., of the records of Terre-bonne Parish. These were the vendors whom the defendant sought to call in warranty.

The right of a defendant to call its vendor in warranty in a case of this kind is granted in express and unequivocal terms in Articles 380 and 382 of the Code of Practice, which provide:

“380. When one is sued in eviction of an immovable property sold to him, * * he shall be entitled to a delay, in order to have his warrantor made a party to the suit * *
“382. The defendant, wishing to call one in warranty, may, in his answer, pray the court to decree against his warrantor the same judgment which may be rendered against him on the principal action. Such prayer will be considered as a demand in warranty.”

In the Civil Code, under Title VII, Chapter 6, Section 2, “Of the Warranty in Case of Eviction from the Thing Sold”, “eviction” is defined in Article 2500 thus:

“Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.”

In this case the defendant will suffer the loss of the thing sold to it if the plaintiffs prevail, and the case therefore falls squarely within Articles 380 and 382 of the Code of Practice.

The plaintiffs-appellees, in support of the trial judge’s ruling denying defendant the right to call in warranty its vendors who had conveyed to it by warranty deed, duly recorded, rely on the well established proposition of law that parties sought to be rendered liable as trespassers are not permitted to escape from the responsibilities consequent upon their acts by pleading in defense the authority of third persons, and they cite in support of this proposition the cases of Tourne et al. v. Lee et al., 8 Mart., N.S., 548, 20 Am.Dec. 260; Hood v. Stewart, 2 La.Ann. 219; Coco v. Hardie, 25 La.Ann. 230; Bossier’s Heirs v. Jackson et al., 114 La. 707, 38 So. 525, and Hickman et al. v. Hill, Harris & Co., Inc., et al., 168 La. 881, 123 So. 606. None of these cases is pertinent to, or controlling of, the issues in this case for the reason that here the title to the timber, the ownership of which both parties claim, is the primary issue, and the defendant is defending the title of a thing it has allegedly purchased by warranty deed. In the cases of Tourne et al. v. Lee et al.; Hood v. Stewart; Coco v. Hardie, and Hickman et al. v. Hill, Harris & Co., Inc., et al., the defendants did not defend the trespass suit on the ground that they owned the property which was the subject of the alleged trespass. In the first three cases cited the defendants sought to defend the suit on the ground that the acts they had committed had been authorized by third persons whom they sought to call in warranty. The rulings in those cases, therefore, are absolutely sound, but have no application here. In the case of Hickman et al. v. Hill, Harris & Co., Inc., et al., the real issue was the measure of damages, and the opinion does not disclose that the defendants denied the trespass.

In the case of Bossier’s Heirs v. Jackson et al., supra, this court disposed of the case by considering only the allegations and prayer of the plaintiffs’ petition, and by this consideration concluded that the suit could stand as an action of trespass, and denied the defendants the right to call their vendors in warranty. Whether that decision was correct in that particular case is immaterial here; but what the court in that case apparently overlooked was the fact that the propriety of a call in warranty in a trespass case must be determined by the defense of the defendant and not by the petition of the plaintiff, and, if the defendant claims title to the property subject of the alleged trespass, he may call his vendors in warranty. A plaintiff, by alleging that a defendant is a trespasser, cannot have him classed as such, and, as such, denied the right to call his vendors in warranty to defend the title they have warranted.

In Vance v. Noel et al., 143 La. 477, 78 So. 741, 742, plaintiff instituted a partition suit against certain defendants. The defendants answered, denying any ownership in the plaintiff, set forth their acquisition, claimed title in themselves by deed recorded in the records of Caddo Parish, and called their vendor in this deed in warranty to defend the suit. Plaintiff moved to strike the call in warranty contained in defendants’ answer, and the motion was granted by the lower court. The case went to trial on the merits, and there was judgment in favor of the plaintiff. The defendants then appealed. In the course of that opinion this court said:

“The order striking the call in warranty from the record was an interlocutory order, and the defendants’ appeal therefrom at the termination of the suit was taken at the proper time.

“ * * * Inasmuch as the ruling of the court has deprived defendants of the defense, or defenses, which their war-rantor might have successfully made to the suit, the judgment will have to be reversed in its entirety.”

What was said there is pertinent here. It is now necessary to reverse the judgment of the lower court in its entirety.

For the reasons assigned, the judgment appealed from is reversed and set aside, the call in warranty by defendant is reinstated, and the case is remanded to the lower court to be proceeded with according to law; ap-pellees to pay all the costs of this appeal, the assessment of all other costs to await the final disposition of the case.

FOURNET, C. J., absent.


text:
    216 La. 559
    Eugene A. DALTON v. NORMAN-BREAUX LUMBER COMPANY, Inc.
    No. 39155.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Jan. 9, 1950.
    Bauer & Bauer, Franklin, Pettigrew & Duval, Houma, for defendant and appellant.
    Leonrad Greenburg, Houma, for plaintiffs and appellees.
   HAWTHORNE, Justice.

This case was consolidated in the lower court with the case of Blanchard et al. v. Norman-Breaux Lumber Company, Inc., 44 So.2d 112, for the purposes of trial, to be tried as one case with separate judgments to be rendered, and also was consolidated for the purposes of argument in this court.

For the reasons assigned in the case of Blanchard et al. v. Norman-Breaux Lumber Company, Inc., 44 So.2d 112, the judgment appealed from is reversed and set aside, the call in warranty by defendant is reinstated, and the case is remanded to the lower court to be proceeded with according to law; appellee to pay all the costs of this appeal, the assessment of all other costs to await the final disposition of the case.

FOURNET, C. J., absent.


text:
    216 La. 560
    STATE v. WINEY.
    No. 39473.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    F. Irvin Dymond, New Orleans, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Raci-vitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., Robt. E. LeCorgne, Jr., Asst. Dist. Atty., New Orleans, for appellee.
   McCALEB, Justice.

Appellant was indicted for murder and found guilty of manslaughter. During the trial she reserved six bills of exception but, of these, only three, Nos. 1, 2 and 5, are being urged here for reversal of her conviction and sentence. We shall discuss them in their respective order.

When Dr. Richard L. Buck, Assistant Coroner, took the stand and was asked to state the findings, as shown by the proces verbal of the inquest, counsel for appellant objected to his evidence on the ground that the district attorney did not disclose, in his opening statement to the jury, that the State would prove the specific cause of death or the condition of the victim’s body but merely that it intended to introduce the proces verbal. In support of this objection, which was overruled by the judge, counsel relies upon Article 333 of the Code of Criminal Procedure and State v. Silsby, 176 La. 727, 146 So. 684.

The contention is without substance. Article 333 requires an opening statement by the district attorney “ * * * explaining the nature of the charge and the evidence by which he expects to establish the same.” But this does not mean that he is obliged to give the name of each witness he intends to place on the stand. Appellant was informed by the opening statement that the proces verbal would be offered in evidence and it was to be assumed that the coroner, who conducted the inquest, would be called as a witness to identify it and corroborate the findings of the jury. In any event, if there was error, appellant can hardly claim that the admission of Dr. Buck’s testimony constituted a substantial violation of any of her constitutional or statutory rights. In the absence of such a claim, a reversal cannot be obtained. Article 557, Code of Criminal Procedure.

The case of State v. Silsby, relied upon by counsel, involved the question of the admissibility of a confession, where the district attorney failed to mention it in his opening statement. It is wholly without application here.

The second bill of exception was taken to the judge’s action in overruling appellant’s objection to the admission in evidence of the proces verbal. There is no merit in the bill. Article 35 of the Code of Criminal Procedure declares, in part: “Upon the trial of the case the proces verbal of the inquest shall be competent evidence of death and the cause therefor, but not of any other fact.”

Bill of Exceptions No. 5 was reserved to the judge’s refusal to submit the following special charge to the jury: “Evidence of good character must be considered with the other evidence. If, however, the accused offers no- evidence of good character the law presumes that she has a fair and respectable character, and does not permit any presumption of guilt to arise from her silence as to her character or from her failure to offer evidence on this point. That her character is bad can never be presumed.”

In arguing that the proffered charge is a correct statement of the law, counsel for appellant cites Underhill’s Criminal Evidence, Section 165, page 286, which supports his contention.

Notwithstanding this, we think that the judge correctly refused the special charge. The statement in Underhill’s Criminal Evidence that the Law presumes that the accused has a good character does not appear to be founded on sound reasoning. In fact, this court has held directly to the contrary in State v. Davis, 154 La. 295, 97 So. 449, 455, where the judge refused a special charge — that the law presumes that every person has a good character and reputation — on the ground that the character of the defendant was not put at issue during the trial. In approving this ruling, we said: “This bill fails to show that any question whatever arose as to the character of the defendant in the case, and admits that no testimony of any kind as to the general reputation of defendant was adduced at the trial. The special charge was an attempt to get before the jury indirectly a presumption of defendant’s good character without any proof, and without giving to the state an opportunity to rehut such presumption by counter testimony.”

The foregoing analysis has been adverted to with approval by Professor. Wigmore in his treatise on the law of Evidence. In the Third Edition, Volume II, Section 290, pages 176, 177, it is stated: “But it is incorrect to say that the accused’s good, character is presumed; this inconsistently gives him the untrammeled benefit of evidence which, if he had introduced it, might have been disputed. What really happens, or ought .to, is that defendant’s character is simply a non-existent quantity in the evidence; this distinction has sometimes been expressly pointed out.” (Italics are by the author).

The conviction and sentence are affirmed.

      . See also Greer v. U. S., 245 U.S. 559, 38 S.Ct. 209, 62 L.Ed. 469, where the Supreme Court of the United States, through Mr. Justice Holmes, after recognizing that there had been some jurisprudence and textbooks of a contrary view, held that, in the absence of evidence as to the character of the accused, there is no presumption of good character which’ can be considered as evidence in his favor upon the question of guilt or innocence.


author: PONDER, Justice.

text:
    216 La. 566
    ADAMS v. PERILLOUX et al.
    No. 39202.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    McGovern & McGovern, by D. A. McGovern, III, New Orleans, for appellant.
    Dalton J. Barranger, Covington, Harold Moses, New Orleans, for defendant and appellee.
   PONDER, Justice.

Mrs. Rose Perilloux Smith brought suit against Mrs. Bessie M. Adams, individually and as executrix of the successions of William E. Gause and Louise Foster Gause, seeking to annul a judgment rendered in the Civil District Court for the Parish of Orleans on October 15, 1946. The judgment sought to be annulled was rendered on confirmation of a default in a suit brought by Mrs. Adams, individually and as executrix of the successions, against Mrs. Smith wherein certain stocks and bonds were decreed to be the property of the successions. The present suit is predicated on the ground that the judgment confirming the default was secured by Mrs. Adams through fraud and ill practices. On trial in the lower court, the plaintiff’s demand was rejected and she has now appealed.

Mrs. Louise Foster Gause, wife of William E. Gause, died on June '5, 1943 leaving a will bequeathing 315 shares of stock in the Todd-Johnson Shipbuilding Company and 7 shares in the Suburban Building & Loan Association to Mrs. Rose Perilloux Smith, her niece, and bequeathing the residue of her estate to her husband, W. E. Gause, whom she appointed executor of her will. William E. Gause died on August 13, 1945 leaving a will bequeathing all of his property to Mrs. Bessie Mclnnis Adams, his niece, and appointing her executrix of his will. The successions were opened in St. Tammany Parish and Mrs. Adams was duly appointed dative testamentary executrix of the succession of Mrs. Gause and testamentary executrix of the succession of Mr. Gause.

A suit was brought by the executrix to set aside a purported sale of a house from Mr. Gause to Mrs. Smith which resulted in a judgment in favor of the executrix which is now on appeal in this court. The attorney for the executrix contacted Mrs. Smith with the view of obtaining a list of the stocks and bonds owned by the successions in order to include them in the inventories but failed to secure this information. Shortly thereafter, on September 20, 1945, Mrs. Smith informed the attorney for the executrix by letter that if he desired any information concerning the settlement of the estates to get in touch with her, Mrs. Smith’s, attorney. After repeated efforts to obtain a list of the stocks and bonds without avail, the attorney for the executrix had a suit instituted in Kentucky against a Mrs. David seeking to sequester all stocks and bonds in her possession belonging to the successions. He also instituted another suit in the Civil District Court for the Parish of Orleans against Mrs. Smith seeking to sequester all stocks and bonds in her possession belonging to the successions. The return on the Kentucky suit was to the effect that the stocks and bonds had been sent to Mrs. Smith and the return on the sequestration in the Civil District Court for the Parish of Orleans was to the effect that all of the stocks and bonds had been turned over to the attorney for Mrs. Smith. After repeated negotiations between the parties, the attorney for the executrix was finally presented with a list of the stocks and bonds and afforded an opportunity to inspect them. The stocks and bonds stand in the name of Mrs. Gause and are as follows : 315 shares of common stock of Todd-Johnson Dry Docks, Inc. of the par value of $1 per share; 7 shares of stock of the Suburban Building and Loan Association of the par value of $100 per share; 25 shares of capital stock of Standard Oil Company, Inc., Ky. of the par value of $10; 2 shares of stock in the Louisville Gas and Electric Company, Inc. of the par value of $25 per share; 2 income registered bonds of the Speed Building, Inc. of the face value of $1,000 each; and 2 first mortgage leasehold bonds of the Majestic Realty Company of the face-value of $500 each.

The attorney for Mrs. Smith endeavored to obtain a compromise with respect to the-stocks and bonds and was informed by the attorney for Mrs. Adams that the only compromise that Mrs. Adams would be-agreeable to would be to give Mrs. Smith, the stocks and bonds bequeathed to her by Mrs. Gause although the attorney for the executrix was of the opinion that these-stocks and bonds were community property. It appears from the communications that the offer of compromise was not satisfactory and that the attorney for the executrix informed the attorney for Mrs. Smith that he assumed the matter was closed. The attorney for the executrix on several occasions informed the attorney for Mrs. Smith that his client was insisting that he proceed with the suit in the civil district court and that unless something was done immediately he would so proceed. The attorney for the executrix informed Mrs.. Smith’s attorney that a preliminary default was being entered in the suit in New Orleans and that contempt proceedings would. be started in the suit in Kentucky. On August 8, 1946, the attorney for the executrix informed the attorney for Mrs. Smith that the preliminary default had been entered in the City of New Orleans and if Mrs. Smith would not accept the stocks and bonds bequeathed to her by Mrs. Gause as a compromise that the attorney for the executrix would proceed with the suit in New Orleans as soon as possible. On October 15, 1946 a judgment confirming the default previously entered in the civil district court was rendered. The judgment was signed on October 21st, thereafter, and on that date served on Mrs. Smith. In this judgment the succession of Mrs. Gause was recognized as the owner of an undivided one-half interest in all the stocks and bonds and the succession of W. E. Gause was recognized as the owner of an undivided one-half interest in the stocks of the Suburban Building & Loan Association and the owner of all the other stocks and bonds. Thereafter, on October 26th, the attorneys for the liti■gants entered into an agreement compromising and settling all matters in dispute between the executrix, Mrs.' Smith and Mrs. David, which Mrs. Smith refused to accept. Mrs. Smith employed a firm of lawyers in the City of New Orleans who instituted the present suit seeking to annul the judgment rendered in the civil district court on October 15, 1946 on confirmation of default.

Counsel for the plaintiff relies on three letters to prove that the judgment of default was obtained by ill practices on the part of Mrs. Adams: a letter dated December 18, 1946 in which the attorney for the executrix stated that the default was not entered or confirmed by him; that he was not present when it was done and -that he understood that the matter was ;handled by an attorney in New Orleans — ;a letter dated January 29, 1947 from' the .-attorney who represented Mrs. Smith in -.the first suit to the attorneys who are .representing her in the present suit to the , effect that he was given no notice that a judgment of default was to be confirmed; -.that he had discussed the matter with the . attorney for the executrix with the view of a compromise which was being checked at the time the judgment was rendered; that the attorney for the executrix advised him that he had refused to have any part of the confirmation of the default and that it was confirmed by an attorney in New Orleans without his consent — a letter dated February 7, 1947 from the attorney of Mrs. Smith in the first suit to her attorneys in the present suit to the effect that when Mrs. Smith handed him the petition served on her in the first suit that he attempted to amicably compromise the suit; that while offers were being made pro and con with the view of a compromise that Mrs. Smith brought him a copy of the judgment served on her; that he contacted the attorney 'for the executrix and was informed that he did not take part in the confirmation of the default and would not do so without giving notice. It is stated in that letter that the writer did not dispute the word of the attorney for the executrix of his being cognizant of what was going on, but the writer insisted that he was not advised that the default was to be confirmed.

The testimony of Mrs. Adams, who was called for cross-examination, was to the effect that her husband was an attorney employed by the Federal Land Bank and that another attorney in the employ of that bank had confirmed the default at the request of her husband and her attorney. The testimony of Mr. and Mrs. Smith is merely to the effect that they turned the matter over to her attorney and that they knew nothing of what transpired except what transpired after the confirmation of the default. The testimony of the attorney who represented Mrs. Smith was to the effect that he was surprised when he ascertained that the default had been confirmed without giving him previous notice; that when Mrs. Smith asked him for more concrete evidence than his word as to whether he or the attorney for the executrix had any knowledge that the default was going to be confirmed that he called the attorney for the executrix and told him he was behind the eight ball because the judgment had been confirmed without his knowledge. He testified that the attorney for the executrix had informed him on a number of occasions that something would have to be done with the case and that he suggested that the executrix offer his client a compromise. He stated that he did not submit the offer of compromise made by Mrs. Adams to his client because he thought it was ridiculous. His testimony is to the effect that he did not believe that the attorney would confirm the default without giving him notice.

The testimony of the attorney for the executrix is to the effect that he wrote the letter to the attorney for Mrs. Smith, after the judgment had been entered in order to assist the attorney, whom he was under the impression was on the spot with his client. The other two letters relied on by the plaintiff are predicated on this communication. He testified that he had made repeated efforts to dispose of the case and was reluctant to confirm the default on account of his personal friendship to the attorney, but his client insisted on some action being taken. The attorney in the City of New Orleans who confirmed the default did so on his and Mr. Adams’ authority and that he, the attorney for the executrix, assumes all responsibility in the matter.

While it is alleged in the petition that there was a written agreement entered into that no default would be taken without notice being given, there is absolutely nothing in the record to support this allegation or that any such agreement was entered into between the attorneys. In the letter of February 7, 1947, from the attorney of Mrs. Smith-in the first suit to the attorneys for Mrs. Smith in the present suit, we find that he informed these attorneys that it was his professional opinion that the Smiths were beaten on the merits of the case and inasmuch as it had assumed such proportion that he desired to be released from the bond he had furnished in the first suit.

From a reading of the testimony as a whole, it appears that the attorney for Mrs. Smith was delaying the suit with the view of trying to get a favorable compromise and assumed that the attorney for the executrix could not confirm the default, irrespective of his repeated warnings that his client was insisting on action being taken, because of his personal friendship to the attorney. The attorney for the executrix was continually warning the attorney for Mrs. Smith that action would be taken and he was reluctant to confirm the default. He and the husband of Mrs. Adams requested an attorney in New Orleans to confirm the default for him. The attorneys involved in the suit are highly respected in their profession and their integrity is not questioned. There is nothing in the record to show any wrong doing on the part of Mrs. Adams and the attorneys for the plaintiff do not contend that there was any wrong doing on the part of the attorney for the executrix. Their suit is based on the ground that the judgment was secured by ill practices on the part of Mrs. Adams. The record does not support any such conclusion.

Article 607 of the Code of Practice provides that a definitive judgment may be annulled where it appears that it was obtained through fraud or ill practices on the part of the party in whose favor it was rendered. While it has been held that the causes enumerated in this article are merely illustrative and not restrictive yet there must be some artifice or deception used to prevent an adversary from fully exhibiting his case. There were no artifice or deception used to prevent any answer being filed in the case or to prevent the opposing party from fully exhibiting his case. The two cases cited by the plaintiff, Lazarus v. McGuirk, 42 La.Ann. 194, 8 So. 253 and Engeran v. Consolidated Companies, Inc., La.App., 147 So. 743 are not in point because in those cases the opposing parties were led into a false security because of statements and promises made by their adversaries.

Under the rules of the Civil District Court for the Parish of Orleans no agreement between attorneys or parties to a suit will be noticed unless it be reduced to writing and filed in the record. In the present suit there was no agreement entered into by the parties either oral or written to the effect that a default would not be confirmed without first giving notice. The evidence boiled down to a simple analysis is to the effect that the attorney for Mrs. Smith assumed that such would not be done without giving him notice and shows a reluctance on the part of the other attorney after repeated warning to finally have the default confirmed.

Counsel for the plaintiff, contends that the attorney who confirmed the default was without authority to do so because he was not made an attorney of record as required in Section 10 of Rule 6 of the Civil District Court which provides that when more than one attorney represents a litigant that one of the attorneys be designated as the trial attorney and that no pleading shall be filed without such designation. There was testimony offered in the record that attorneys living in the City of New Orleans had on previous occasions taken defaults and confirmed defaults for attorneys who resided outside of the city as a matter of courtesy. The attorney who confirmed the default testified that he informed the court at that time that he was acting for the attorney for the executrix who resided outside the city upon request. We know of no reason why an attorney cannot perform such functions for another attorney who resides outside the city and no authority to the contrary has been advanced.

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

LE BLANC, J., takes no part.


author: JANVIER, Judge.

text:
    SMITH v. O’BRIEN.
    No. 19358.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.
    Raymond H. Saal, Covington, attorney for Plaintiff-Appellee.
    Edward M. Lombard, New Orleans, attorney for Defendant-Appellant.
   JANVIER, Judge.

This is a suit for a balance alleged to be due on an open account. It was filed on March 10, 1949. Citation was served on defendant on March 29, 1949. In the petition it is alleged that the articles shown on the open account were sold and delivered between July 31, 1945 and January 3, 1946, and plaintiff, realizing that the prescription of three years would be pleaded unless it could be shown that there had been an interruption of prescription, made the following allegation: “That on or about December 20, 1946, the said defendant, in lieu of cash, made a payment on said account by manually handing to the plaintiff herein an Omega watch, which the plaintiff herein accepted for a credit on said bill in the amount of Thirty-five and no/100 ($35.00) Dollars, thus leaving the amount due and owing of One Hundred thirty-four and 3/100 ($134.03) Dollars, as aforesaid.”

Defendant immediately pleaded prescription of three years. At the same time, in his answer, defendant averred that some of the merchandise sold had been defective and did not meet the terms of an alleged guaranty, and therefore, in the alternative that the plea of prescription should be overruled, he denied liability. By recon-ventional demand, defendant then averred that on or about December 20, 1946, he sold to plaintiff a wrist watch for which plaintiff agreed to pay $35 in cash, and that the said $35 had never been paid. He therefore prayed for judgment in reconvention for $35, with legal interest from December 20, 1946.

From a judgment in favor of plaintiff for the amount sued for, $134.03, defendant, plaintiff in reconvention, has appealed.

The plea of prescription of three years is based on Article 3538 of the Civil Code which provides in part as follows:

“The following actions are prescribed by three years:
******
“That on account of merchants, whether selling for wholesale or retail. * * * ”

It is evident that unless there was an interruption of the running of prescription, the application of that article would defeat plaintiff’s claim.

On the question of whether or not there was an interruption, the issue is solely one of fact. Was the transaction which involved the watch one in which the defendant was to be given credit on the account for the value of the watch, which it was agreed was $35, or was that transaction one in which the watch was sold to plaintiff and for which he agreed to pay $35 in cash? If the watch was to be credited on the account, then it seems clear that the result was a payment on account with the resulting acknowledgment of the original debt, and consequently an interruption of the accrual of prescription.

There is no denial of the fact that when the transaction which involved the watch took place on December 20, 1946, the account which is here sued on was almost one year in arrears, and it is not disputed that the purpose of plaintiff’s visit to defendant’s establishment in New Orleans was his attempt to collect that past due indebtedness.

Defendant admits that plaintiff came to his establishment in an effort to collect the past due indebtedness and that when he was there they discussed the watch and agreed that its value was $35.

It seems absurd that plaintiff would have gone to defendant’s establishment to collect a bill which was almost one year past due, and, on failing to collect the bill, would have agreed to buy the watch from the plaintiff and to pay him $35 in cash for that watch.

There is nothing whatever in the record to corroborate defendant’s version of the transaction, except the fact that when counsel for plaintiff first wrote to defendant, in an effort to collect the bill, he set forth the amount of the bill as $169.03, instead of $134.03, and did not mention the credit of $35 which should have been allowed. Counsel explains this by saying that when plaintiff called on him at his law office and told him that he was leaving for California, he mentioned something about a watch but that counsel overlooked it when he wrote defendant demanding payment.

We are satisfied from the record that that is what occurred and that, as a matter of fact, when the watch was delivered to plaintiff by defendant it was with the understanding that the value thereof, $35, would be credited on the admitted indebtedness.

The defense that some of the merchandise was defective is in no way borne out by the record. Defendant says that he bought a great deal of merchandise from the plaintiff and that, among this merchandise, were a number of automobile tires and that two of them proved defective. In a vague way he refers to these defective tires and does not know whether they were some of those sold during the period for which this suit is brought or whether they were tires which had been included in other transactions involving about $1800 of purchases. This defense is obviously an afterthought and has no foundation in fact.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: DORE, Judge.

text:
    SIMON v. MILLER.
    No. 3180.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    J. Minos Simon, Lafayette, for appellant.
    Frank W. Summers, Abbeville, Marcus A. Broussard, Abbeville, for appellee.
   DORE, Judge.

Plaintiff instituted this suit against the defendant for personal injuries and property damage resulting from a collision involving their automobiles respectively driven by them. The collision occurred on January 12, 1949, at about the hour of 1:30 A. M., on the Kaplan-Andrew Highway, in the Parish of Vermillion.

At the situs of the accident, the Kaplan-Andrew Highway is a graveled road which runs practically north and south and is about thirty feet in width. Approximately fifty feet north of the situs of the collision, on the west side of the highway, there is a side road leading from the Plaza Club, referred throughout the record as the Plaza Road, and entering the highway practically perpendicularly thereto. In the southeast corner of this side road, just before it enters the highway, there was a puddle of water. The dimension of this road is not given.

During the afternoon, and probably in the early part of the night, it had rained. However, at the time of the accident, it was not raining, but there was a very heavy fog and the visibility was bad.

Plaintiff alleges that he was traveling at a reasonable rate of speed, in a northerly direction on the highway in the direction of the village of Andrew, that as he approached the Plaza Road, the defendant was driving his automobile on the Plaza Road approaching the highway; that he observed the defendant approaching from the side road and he decreased the rate of travel of his automobile whereupon the defendant drove his automobile unto the highway in a sweeping curve driving his car into his, plaintiff’s, automobile, which was at that time on his own extreme right side of the highway; that the left bumpers of the automobiles became entangled; that he immediately jumped from his automobile and ran to the front in an attempt to disengage the two bumpers; that a third automobile which was traveling behind him struck his automobile from the rear, sending it smashing into him, and causing him serious personal injuries.

He charges the defendant with “negligently driving his automobile unto the highway from a side road and in further making a sweeping turn unto petitioner’s automobile, thereby stalling his car in the path of oncoming traffic.”

The defendant, in his answer, denies all of the allegations of plaintiff’s petition, save and except, he admits that a third automobile which was traveling' behind plaintiff struck plaintiff’s' automobile from the- rear, sending plaintiff’s automobile smashing into him.

Assuming the position of plaintiff in re-convention, defendant avers that, on the day and date of the accident he was traveling in a southerly direction towards the Town of Kaplan, at a slow and cautious rate of travel, on the highway, on his right hand (the western) lane of travel, having negotiated the turn unto the highway from the Plaza Road; that plaintiff was traveling in the middle of the -highway, or nearly so, with a portion of his automobile in defendant’s lane of travel, in a northerly direction; upon seeing plaintiff’s automobile, he, defendant, 'brought his automobile to a complete stop, whereupon plaintiff drove his automobile extremely near or into defendant’s and both vehicles were then- at a standstill; “no damages resulted from the contact, if any, •between the two automobiles and the two bumpers did not become entangled.” That plaintiff “descended to the road and stood between his and respondent’s vehicle, for the purpose, respondent believes, of inspecting said vehicle for damage. . At this time, a third vehicle, * * *, struck plaintiff’s car in the rear sending plaintiff’s automobile smashing into plaintiff’s person and your respondent’s automobile; as a result, your respondent’s car was damaged to the extent of Twenty-four and No/100 ($24.00) Dollars.”

The defendant alleges that “the collision was due entirely to the fault and negligence of Robert Simon, in abandoning his vehicle in the middle of said road, and the fault and negligence of the third party unknown to your respondent, in running into the rear of plaintiff’s vehicle.”

Alternatively, defendant alleges that plaintiff was guilty of contributory negligence, ' barring his recovery, in the following particulars:

“(a) That plaintiff abandoned the said vehicle in the middle of a well traveled highway and negligently stood between his vehicle and that of your respondent’s.
“(b) That plaintiff was driving in the middle of the highway and did not keep to his righthand side of the road.
“(c) That.-plaintiff kept no lookout for oncoming vehicles.”

In the further 'alternative, the defendant avers that it was the negligence of the third party in driving its automobile into plaintiff’s automobile which was the intervening and proximate cause of plaintiff’s injuries and that the said third party had the last clear chance of avoiding the collision.

In the further alternative, defendant alleges that the “plaintiff had the last clear chance to avoid said collision, by observing the oncoming vehicle which struck his automobile and taking refuge in a safe location.”

Upon these issues, the case was tried, resulting in a judgment dismissing plaintiff’s suit and defendant’s reconventional demand. Plaintiff has appealed.

We find the evidence to be very conflicting. About the only facts which are undisputed, besides those stated in the beginning of this review, are that both the plaintiff, accompanied by his wife, his two daughters, Joy and Elaine, aged respectively twelve and fourteen years, and a friend of his daughters, Marguerite Pre-jean, aged sixteen years, and defendant, accompanied by friends, Mr. and Mrs. Doyce Morton, had visited the Plaza Club. The plaintiff, with his guests, left the Plaza Club and went to Kaplan, presumably to obtain gasoline; failing to do so, he was returning towards the Plaza Club on his way home when the accident happened. The defendant, with his guests, left the Plaza Club, with the intention of returning to his home at Abbeville by way of Kaplan, and drove along the Plaza Road, and when he reached the puddle of water, he turned his car slightly to his left and made a long turn on the highway. When defendant reached a point about fifty feet south of the Plaza Road, plaintiff’s and defendant’s cars met and stopped with their respective left lights facing each other, making an overlapping of each automobile of about a foot. Both automobiles were traveling very slowly just prior to coming to a stop. While the automobiles were thus facing each other, a third automobile struck plaintiff’s automobile a'glancing blow at the left rear, causing plaintiff’s automobile to “ram’* into defendant’s left front fender, throwing plaintiff to the ground, resulting in his injuries. The plaintiff’s car came to rest with its two front wheels in the east ditch of the highway and defendant’s automobile remained on the highway. Plaintiff was found lying in the highway, with his head about two feet from the east side of the highway and his feet towards the west side of the highway, about five feet from his car and defendant’s car. It is conceded that the unknown motorist who ran into plaintiff’s automobile was grossly negligent.

As previously stated, the plaintiff charges the defendant with negligence in two particulars :

(1) In entering the highway from a private road, when by so entering he endangered the safety of those using the highway;

(2) In traveling on the left-hand side of the highway in violation of the provisions of Section 3, Rule S of Act 286 of 1938, Dart’s 5210.

We shall discuss these charges in the order named. The testimony of plaintiff is that when plaintiff reached a point of some one hundred feet or more from the Plaza Road, he saw the Miller car was about to turn in the highway, saw it turn on the highway, proceeding south; he applied his brakes and reduced his speed. Dr. Miller testified that he had negotiated his turn on the road when he saw plaintiff’s car approaching him. The fact remains that Dr. Miller had completed his entrance into the highway and was traveling and had traveled along the said highway for a distance of some fifty feet or more before the two automobiles came to a stop, facing each other. This fact is definitely established by the testimony of all .the occupants of the two automobiles. The entrance into the highway by the defendant did not in any way endanger the safety of plaintiff nor did it retard him in his progress.

The next charge of negligence is that defendant was traveling on his left, plaintiff’s right, lane of travel' instead of his right lane of travel. The testimony on this charge is very conflicting and is seriously disputed.

The plaintiff and his companions all testified positively that the plaintiff was traveling on his right lane of travel and as near the edge of the ditch as he could, and that the defendant, after making his entrance " on the highway, was traveling on" his, defendant’s left lane of travel.

Plaintiff testified that he had been traveling on his right side “as near the ditch as he could” and that Dr. Miller was traveling on his, plaintiff’s, side of the road; that the two cars came together and the bumpers became entangled. The vehicles overlapped each other to the extent of about a foot and a half. After the bumpers became entangled and the cars were stopped, his car was near the edge of the ditch on the east side and the car of Dr. Miller was “four feet and something, five feet”, from the east side of the road. Again, he states that Dr. Miller’s car was “four feet and something, four and one-half feet” from the ditch on the east side.

Mrs. Simon, plaintiff’s wife, testified that when the cars came in contact their car was as close to the side of the road as they could be and that she, sitting on the left front seat, was “about seventeen or eighteen feet” from the western ditch.

Miss Elaine Simon, plaintiff’s daughter, testified that when the cars came in contact and stopped, plaintiff’s car was “as close as any car could get to a ditch” on the east side of the road, and Dr. Miller’s car was about five feet from the ditch.

Miss Marguerite Prejean, a guest of plaintiff and companion of plaintiff’s daughters, testified that plaintiff’s car, after the cars came in contact, “was almost in the ditch.” She states that plaintiff’s car was traveling on the “East” side of the road before coming in contact. She places defendant’s car, after the contact of the cars, as “about four and one-half or five feet from the ditch.”

Miss Joy Simon, plaintiff’s daughter, testified that she was sitting on the right rear side of her father’s car, and that her father had been traveling “almost in the ditch”, “close to the ditch,” and that defendant’s car was on her “right side” or the east side of the road; when the cars came to a stop, “our left light and his left light were hooked together,” apparently meaning that the left light of each car was facing each other.

On the other hand, the defendant and his companions, all testified in direct contradiction to the testimony of the plaintiff and his companions. Their testimony is to the effect that the defendant, entering the highway from the Plaza Road, traveled on the west, defendant’s right side, lane of travel, and did not go over the imaginary center line. To the contrary, their testimony is to the effect that plaintiff’s car was traveling approximately a foot over the middle of the road, or over on defendant’s side.

The same situation prevails with reference to the testimony relating to the entanglement of the two bumpers. Plaintiff testified that the bumpers of the cars became entangled, and that he got down from his car to unentangle them. He is somewhat corroborated by his companions who testified that as the two cars contacted each other, they felt a jar or shock'. Dr. Miller, the defendant, testified that the cars never came into contact and that the bumpers were not entangled in that plaintiff passed between the two cars. Defendant and his companion testified that there was no jar or shock as a result of the two cars coming together.

There are other conflicts in the testimony of these parties, such as their testimony relating on whose car bumper plaintiff put his foot in order to unentangle the bumpers, if they were entangled, and where plaintiff was standing when he was struck.

Suffice it to say that we find the testimony as to where the cars were traveling just prior to its stopping with the respective left front headlights facing each other to be very conflicting and altogether irreconcilable. Such was the conclusion of the trial judge.

There is not any evidence in the record of any skid marks or the location of any dirt or mud which fell from any of the cars, nor of any broken glass. The evidence is that the third person’s automobile hit the left rear end of plaintiff’s car with such force as to cause plaintiff’s automobile to ram into defendant’s left fender and breaking defendant’s left front light and causing plaintiff’s car to be precipitated with its two front wheels into the ditch on the east side of the highway. The condition of the highway and the Plaza Road, considering the then weather condition, necessarily must have caused mud or dirt to gather under the fenders of the .automobiles. Furthermore, it is strange indeed that plaintiff’s car did not leave marks on the highway when it was caused to go to the ditch. Such physical facts would greatly have helped in solving the important question as to which was the offending automobile with regard to the proper lane of travel.

The plaintiff in his brief, lays great stress on the testimony of a cab driver and his three customers who reached ithe scene of the accident shortly after the collision. These witnesses testified that when they reached the scene of the accident, defendant’s car was on the east side of the road. However, the defendant and Mrs. Morton, a companion of defendant, testified that immediately after the collision between the third party’s automobile and that of plaintiff and defendant, the defendant drove his car in such a position in order that he could focus his good light, the right, on the plaintiff in order to render to plaintiff such assistance as he could.

After a careful review 'and consideration of this record, and after giving written reasons for judgment, which written reasons comprise some twenty-two pages, the trial court came to the conclusion that plaintiff had failed to bear the burden of proof showing defendant to be guilty of negligence with reasonable certainty.

After a careful review of this record, we are in full accord with the trial judge’s conclusion. It is the burden of plaintiff to show negligence on defendant’s part. This he has failed to do. Suffice it to say that purely a question of facts is involved, and finding no reversible error committed by the trial judge, the judgment appealed from is affirmed.

ROBERT D. JONES, J., sitting ad hoc.


author: JONES, Judge ad Hoc. ELLIS, Judge

text:
    AUCOIN v. HOUSTON FIRE & CASUALTY CO.
    No. 3192.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.

      Blanchard & Blanchard, Donaldsonville, for appellant.
    St. Clair Adams & Son, New Orleans (P. A. Bienvenu, New Orleans, of counsel), for appellee.
   JONES, Judge ad Hoc.

The plaintiff seeks the recovery of damages to his automobile, which was being driven by his brother and which collided with a car driven by one Norman Legendre, which was insured by the defendant, Houston Fire & Casualty Company. From a judgment rejecting his demand the plaintiff has appealed.

The facts show that this accident occurred at the intersection of Canal Boulevard and East Second Street (Louisiana Highway No. 29) in the Town of Thibo-deaux, Louisiana. Canal Boulevard runs in a northerly and southerly direction, and East Second Street runs in an easterly and westerly direction. The car driven by the plaintiff’s brother Rudolph was proceeding in a northerly direction along Canal Boulevard and the car driven by Legendre was proceeding in a westerly direction along East Second Street. East Second Street is a main thoroughfare through the Town of Thibodeaux and is a right-of-way street. Canal Boulevard is a less-favored street, and the evidence reflects that there was a stop sign on Canal Boulevard just prior to its entrance into East Second Street. It is further shown by the testimony of Clarence Morvant, a taxi driver, and Miss Rita Legendre, who was a passenger in the taxi, that the plaintiff’s car passed the taxi driven by Morvant on Canal Boulevard within a block of the intersection of Canal Boulevard and East Second Street, and at that time the plaintiff’s car was being driven at a rate of speed of 25 miles per hour. These witnesses further testified that, when the plaintiff’s car reached the intersection of the two streets, the driver did not slow down but continued at the same rate of speed into the intersection. In his written reasons for judgment, the district judge gave great weight to the testimony of these witnesses for the reason, as stated by him, they were “among the more reliable witnesses in the case because of their disinterest”.

After the plaintiff’s car had proceeded into the intersection to a point about 3 feet north of the black line which divides the said intersection, the said car and the one driven by Legendre collided, and the evidence shows that the front of Legendre’s car struck the other car about the middle thereof.

It is contended by the plaintiff that Legendre was negligent in failing to give any warning of his approach to the intersection; failing to slow down for the said intersection ; failing to apply his brakes and bring his car under control; failing to' keep a proper lookout to see what he should have seen, namely that the driver of plaintiff’s car had preempted the intersection, and operating his car at too rapid a speed under the circumstances. It is further contended that the plaintiff’s brother was operating the car in a slow and careful manner, not at fault and in no way contributing to said collision.

The record reflects that Legendre’s car was being operated at a rate of speed of 20 miles per hour, on a right-of-way street and adjacent to the corner of the intersection (in the direction from which the plaintiff’s car was proceeding) there was a house which abutted the sidewalk and several cars were parked along Canal Boulevard. These prevented Legendre from seeing the car driven by plaintiff’s brother until said car was almost in the intersection and, since plaintiff’s brother continued his speed of 25 miles per hour into the intersection, it was impossible at that time for Legendre to stop or to do anything else for that matter in order to avoid the collision. Certainly, since Legendre was on a right-of-way street, it was not necessary for him to give any warning of his approach to the intersection, particularly in view of the fact that there was a stop sign on Canal Boulevard with which Legendre was familiar. Neither did any duty devolve on him to slow down at said intersection because he was traveling at a speed of only 20 miles per hour, and knowing that the stop sign was on Canal Boulevard he certainly had the right to believe that any car entering the intersection from that direction would stop in compliance with the law. We, likewise, do not believe that his failure to apply his brakes, under the circumstances, could constitute negligence. However, there is testimony by Legendre that he did actually apply his brakes.

The plaintiff contends that Legendre should have applied his brakes, brought his car under control and thereby passed the plaintiff’s car to the back thereof. We are of the opinion that no such duty devolved upon Legendre under the circumstances even though we are of the opinion he did apply his brakes. He was proceeding along this right-of-way street, at a lawful and reasonable rate of speed of 20 miles per hour, and he certainly had a right to believe that any car coming out of Canal Boulevard would slow down in conformity with the stop sign.

Since the plaintiff’s brother was driving at a rate of speed of 25 miles per hour and did not even slow down, then he was guilty of the negligence which created the emergency that caused the accident. While it might have been true that there was room behind the car driven by the plaintiff’s brother at the time of the collision for Legendre’s car to have passed, yet the emergency which he created was so sudden that it would have been impossible for Legendre to have made such a maneuver.

It is further contended by plaintiff that Legendre failed to keep a proper lookout in that he failed to see that which he should have seen — the fact that the car driven by the plaintiff’s brother had preempted the intersection. We are not satisfied that plaintiff’s car actually preempted the intersection. Since the plaintiff’s car was being driven at a rate of speed of 25 miles per hour and the Legendre car at a rate of speed of 20 miles per hour, we do not consider the fact that the accident happened 3 feet north of the black line as sufficient to determine that the plaintiff’s car had preempted the intersection. Under the circumstances, the difference in speed of the respective cars could have caused plaintiff’s car to have proceeded further into the intersection than the car driven Le-gendre and, too, Legendre applied his brakes just prior to the collision. Anyway, preemption of an intersection does not mean the prior entry of a vehicle by a matter of a few feet or by a fraction of a second ahead of another vehicle, but it means under our jurisprudence the entry into an intersection with the opportunity of clearing the same without obstruction of the path of another vehicle under normal and reasonable conditions and circumstances. See Butler v. O’Neal, La.App., 26 So.2d 753.

We, accordingly, are of the opinion that Legendre was guilty of no negligence in the premises and that the negligence of the driver of the plaintiff’s car was the sole and proximate cause of this accident. For these reasons, the judgment of the lower court will be affirmed.

ELLIS, Judge

(dissenting).

As I view the facts in this case, they show that the point of collision was as stated in the majority opinion approximately 3 feet to the north of the center line of Highway 29 and approximately 1 foot east of the center line of the east lane of Canal Boulevard in the northeast quarter of the intersection. It is shown that the east lane of Canal Boulevard which plaintiff was traveling is 23 feet wide, and the highway which Legendre was traveling is 30 feet wide. After the collision, plaintiff’s car, which was traveling north, was pushed by the Legendre car, which was traveling west, entirely off its northerly course in a north westerly direction against the curb of the neutral ground.

Plaintiff’s car came to rest turned over on the curb of the neutral ground with its front end approximately 3 feet west of the southeast corner of the neutral ground' on the north side of Highway 29 facing east, although at the time of the collision it was traveling north. This neutral ground is recessed a distance of 6 feet from the north line of Highway 29. The east lane of Canal Boulevard is 23 feet wide and the collision occurred 1 foot east of the center line of the East lane of Canal Boulevard. Thus, on a straight line from the point of impact to the front of plaintiff’s car where it came to rest was approximately 21% feet. The front of Legendre’s car struck the plaintiff’s car at a point where the right rear fender and running board join. Legendre’s car, therefore, pushed plaintiff’s car diagonally in a semi-circle a distance of approximately 30 feet to 35 feet from the point of collision. I arrive at this conclusion by adding to the 21% feet the distance from the front of the plaintiff’s car to the point of impact directly in front of the right rear fender, which would be approximately 10 to 12 feet, as the car was approximately 15 or' 16 feet in length. This is almost conclusive proof that the Legendre car was being driven quite a bit faster that the plaintiff’s car at the time of the collision, and, also, that it was traveling at a faster rate than 20 miles per hour. It seems reasonable to conclude from this that if plaintiff’s car had been traveling 25 miles per hour and the defendant’s car had been traveling 20 miles per hour that the plaintiff’s car would have dragged Legendre’s car in a northerly direction rather than for the Legendre car to push the plaintiff’s car entirely off its course and in an opposite direction a distance of approximately 30 to 35 feet. While there is no testimony as to the weight of either car, it is shown that the plaintiff’s car was a two seated ’38 Chevrolet with two doors, while the Legendre car was a 1948 two door sedan Chevrolet. I believe it safe to assume there was not much difference in the weight and therefore the distance which the Legendre car pushed the plaintiff’s car of approximately 30 feet in front of it was due to the speed and not to any advantage given it by extra weight.

Legendre and some of the witnesss who testified on behalf of the defendant, particularly the taxicab driver and his passenger, Miss Rita Legendre, whose testi-money is quoted in the majority opinion and whom the District Court stated were among the more reliable witnesses in the case because of their disinterest, testified that plaintiff’s car and the Legendre car arrived at the intersection at approximately the same time. This is impossible, even .if we take the speeds as stated in the majority opinion that 'the plaintiff’s car was traveling 25 miles per hour and the Legendre car was traveling 20 miles per hour. From the point where the plaintiff entered the intersection to the point of impact was 18 feet, and from the point where Legendre entered the intersection to the point of collision was 10% feet. In order to determine how far plaintiff’s car traveled from the point where it entered- the intersection to the point of the collision we must add the distance from the front end of plaintiff’s car to the point of impact at the right rear fender which conservatively would be 10 feet, making an approximate' distance of 28 feet. On the other hand, Legendre’s car, from the point where it entered the intersection to the point of collision traveled only 10% feet. Thus, plaintiff had traveled slightly less than'three times the distance of Legendre. Therefore, if the two cars reached the respective points at which they entered the intersection at the same time, for the collision to have occurred where it did the plaintiff would have had to be traveling at a speed slightly less than three times the speed of the Legendre car. In other words, if Legen-' dre’s car was going 20 miles per hour, the plaintiff’s car would have had to be traveling almost 60 miles per hour. Therefore, it is shown without a doubt that they did not enter the intersection at approximately the same time. The plaintiff entered the intersection first and at the time of the collision the front end of his car-was entirely across the intersection and was on the point of entering Canal Boulevard to the north of the intersection. Thus, at the .time of the collision plaintiff’s car had completely cleared the south lane of the highway and this 15 feet was open and clear and Legendre, by veering approximately 3 or 3% feet to his left, would have passed to the rear of plaintiff’s car without touching it. Legendre, if we accept his speed at 20 miles per hour, which I do not believe is correct as shown by the force of his blow, would have been back from the intersection a sufficient distance to have stopped before the collision. He testified that he applied his brakes but the proof shows- that he did not. No witness saw any evidence of any brakes ' being applied by Legendre or by the plaintiff, for that matter. Legendre admitted that he did not see the plaintiff until almost simultaneously with the collision.

I further see no reason why Legendre, had he looked, could not have seen plaintiff quite a distance before he entered the intersection. It is true that there is a camphor tree shown in one of the photographs but it does not have any limbs for quite a distance from the ground and does not obstruct the view. There is a house which sits at the corner of East Canal Boulevard and the highway. It is shown that this house is 12 feet back trom East Canal Boulevard and approximately 7 or 8 feet from the highway. It is also shown that there were possibly two cars parked in front of the house on the corner but I do not believe from the testimony or the. photographs introduced in evidence, that the house, the camphor tree or the cars obstructed Legendre’s view to such an extent that he could not have at least seen the plaintiff approaching the intersection in plenty of time to have stopped his car rather than to have run into the plaintiff. The reason Legendre did not see the plaintiff’s car in ample time to honor its preemption of the intersection was that he did not look, and under his own admission he never saw the plaintiff’s car until he was about to hit it which he did, head-on, as the front of the Legendre car was damaged.

I do not believe that the plaintiff entered the intersection without slowing down and I base this statement upon the testimony of Miss Rita Legendre, the passenger in the taxicab, even though she testified that the plaintiff did enter the intersection without slowing down. She testified that the plaintiff’s car passed the taxicab on Canal Boulevard within a block of the intersection in which the collision occurred, and at that time the' plaintiff’s car was being driven at an estimated speed of about 25 miles per hour and the taxicab was traveling at approximately 20 miles per hour. Also, there is no testimony that the taxicab accelerated its speed of 20 miles per hour from the time the plaintiff’s car passed it but there is testimony that the taxicab slowed down just prior to reaching the intersection in order to make the right hand turn into the highway. At the time of the collision it had reached the intersection and was preparing to make this turn to its right into the highway.

Counsel for plaintiff then asked Miss Legendre the following questions to which she gave the following answers:

“Q. Just before the collision occurred you were in the middle of the block? A. Just before it occurred we were practically on the highway getting ready to turn.
“Q. You had caught up with the Aucoin car? A. Yes.
“Q. Then it wasn’t going very fast? A. I couldn’t say.”

Therefore, from this testimony plaintiff could easily be correct when he said that he slowed down to approximately 5 miles per hour in crossing the intersection which, if true, would completely destroy defendant’s version of the accident. At least it proves that the plaintiff’s car, between the point it passed the taxi and the point of collision, had slowed down to less than 20 miles per hour, for the very simple reason that the taxicab, which was proceeding at the rate of 20 miles per hour, caught up with the plaintiff’s car and was at the entrance of the intersection when the collision occurred at a distance of approximately 18 feet. If the plaintiff’s car was traveling 20 miles per hour and the Legendre car was traveling 20 miles per hour then, of course, they would cover the same distance in the same length of time and, therefore, if the plaintiff’s car covered approximately 28 to 30 feet from the time the front of his car entered the intersection to the point of collision then at the time that plaintiff’s car started to enter the intersection the Legendre car was also 28 to 30 feet from the point of collision which was approximately 10% feet from the point where the Legendre car entered the intersection. Thus, Legendre would have been, under this state of facts, 18 to 20 feet from the intersection at the time the plaintiff’s car entered it. I am satisfied, however, from the force of the blow and the distance the Legendre car pushed the plaintiff’s car that Legendre was traveling at a much faster rate of speed than 20 to 25 lidies per hour which, of course, would place the Legendre car a greater distance back from the intersection at;the time the-plaintiff entered it.'

Be that as it may, and accepting the speed of the two vehicles as stated in the majority opinion of 25 miles per hour for plaintiff and 20 'miles per hour for Legendre, the plaintiff entered the -intersection first arid was 3 feet farther than halfway across when he was struck heád-on by Legendre. The'facts positively show that the front of his car undoubtedly was about to leave the intersection and enter East Canal Boulevard on the north side. Therefore, the front portion of this car was entirely across the intersection when it was struck. Under these facts, plaintiff, although he did not stop for the stop sign and was negligent in that respect, still had preempted the intersection, and the proximate and sole cause of the collision was the negligence of Legendre.

This case, in my opinion, comes squarely under the decisions rendered in Hutto v. Arbour, La.App., 4 So.2d 84, Phares v, Courtney et al., La.App., 27 So.2d 925, Ferris v. Quinn, La.App., 21 So.2d 106.

In the Phares v. Courtney case, supra, the Court stated [27 So.2d 926]:

“The preponderance of the evidence shows that the front part of the log truck had passed the east boundary .of the intersection a few feet and was traveling on its right, or the south side of the intersection when it was struck by the front part of the Hall truck on the fear wheels of the truck tractor part of the log truck, that is to say near where the trailer was attached to the pulling part of the log truck. The collision took place in the southeast quarter of the intersection, about 9 feet from the southeast corner.
* * * * * *
“Therefore, as it is clearly shown that the front part of the Hall truck struck this log truck broadside in the southeast corner of the intersection, the log truck must have entered the intersection first as the front part of that truck traveled 30 feet across St. Phillip Street, plus several more feet beyond the intersection before it was struck on its left' side by the Hall truck.”-

In the case of Hutto v. Arbour, supra, the Court stated [4 So.2d 89]: “The negligence of Arbour is practically conceded, and if it were not conceded, it 'is so obvious as to require little discussion. He approached the intersection at too fast a speed and without keeping a proper lookout and without taking the necessary pre-cáutions to keep from' striking the car driven by Mrs. Hutto. She entered -the intersection first at a moderate rate of speed and was al most halfway across when Ar-bour entered the. intersection and struck the rear part of her car after she had gotten at least three fourths across. As Mrs. Hutto had entered the intersection and was proceeding across it when Arbour approached it, she had a right to proceed across regardless of which street was given the right of way either by a city ordinance or the state law. See Welsch v. [Sue Wah] Laundry, 13 La.App. 20, 127 So. 751.”

I think that what happened in the above cited case also happened in the present case, that is, Legendre approached the intersection at too fast a speed and without keeping a proper lookout and without taking the necessary precautions to keep from striking the car driven by plaintiff. Also, in the present case as in that case, plaintiff was more than halfway across the intersection and as he had entered the intersection and was proceeding across it when Legendre approached it, he had a right to proceed across regardless of which street was given the right of way.

In the Ferris v. Quinn case, supra, the Court stated [21 So.2d 107]:

“The facts show that at the time of the accident both cars were traveling at a moderate rate of speed. The point is made on behalf of defendant that Anniston Street, along which defendant was proceeding is a favored street, under traffic ordinances of the City of Shreveport, over Ockley Drive, which was the thoroughfare being used by plaintiff. However, it is well established that if plaintiff first entered and pre-empted the intersection, defendant thereby lost the benefits granted tinder such a municipal statute, and responsibility thereupon devolved upon him to take such precautions as might be necessary to avoid a collision with the pre-empting .vehicle. [2] Blashfield’s Cyclopedia of Automobile Law and Practice, Perm. Ed. § 991, et .seq; Hutto v. Arbour, La.App., 4 So.2d 84; Gardiner v. Travelers Indemnity Company, La.App., 11 So.2d 61.
“We think there is no question from the testimony developed on trial of the case that Miss Ferris, the plaintiff, entered the intersection at a speed of approximately 20 miles per hour, and had negotiated almost half of the distance across such intersection before being struck by defendant’s car, which was traveling at aprox-imately the same rate of, speed. * * * ”

The facts in the present case, in my opinion, are more in favor of the plaintiff than were the facts in the above case, for in the Ferris case the plaintiff had not negotiated half the distance across such intersection whereas in the present case the plaintiff had negotiated more than half the distance across the intersection.

The majority opinion relies upon the case of Butler v. O’Neal, La.App., 26 So.2d 753 and states the doctrine laid down therein that “preemption of an intersection does not mean the prior entry of a vehicle by a matter of a few feet or by a fraction of a second ahead of another vehicle, but it means under our jurisprudence the entry into an intersection with the opportunity of clearing the same without obstruction of the path of another vehicle under normal and reasonable conditions and circumstances.”

In Butler v. O’Neal, supra, the court found, as a matter of fact, that neither one was traveling at an excessive rate of speed “since both came to a complete stop within, at most, a car length of the point of impact.” [26 So.2d 755.] In the present case, the Legendre car was traveling at an excessive rate of speed or, at least, at a materially greater speed than the plaintiff’s car for it pushed plaintiff’s car completely around a distance of approximately 30 feet from the point of impact.

The Court also found that “defendant’s claim that he pre-empted • the intersection is not substantiated. The point of the impact and the location of the cars immediately after the collision negatives this.-claim. The facts indicate that the two cars must have entered the intersection at approximately .the same time.” The Court then proceeds to, lay, down the doctrine as stated in the majority opinion.

The doctrine that the pre-emption of an intersection ‘does not mean the prior entry of a vehicle simply by a matter of a few feet or, in relation to the time element, by the fraction of a second ahead of another vehicle must, therefore, be taken in connection with the facts of this case which are to the effect that the vehicles entered the intersection at approximately the same time. In the present case there can be no question of a doubt that the plaintiff’s car entered the intersection first and by a matter of a substantial number of feet and more than a fraction of a second as meant by the court in the case of Butler v. O’Neal, supra.

The majority opinion does not state that the cars involved in this collision entered the intersection at the same time but implies that they did when it says, “Under the circumstances, the difference in speed of the respective cars could have caused plaintiff’s car to have proceeded further into the intersection than the car driven by Legendre and,- too, Legendre applied his brakes just prior to the collision.” As I have’attempted to heretofore show from my appreciation of the facts, the difference in speed of the respective cars did not cause the plaintiff’s car at the time of the collision to have proceeded 28 to 30 feet while the Legendre car was proceeding only 10^2 feet but was entirely due to the fact that the Legendre car was quite a substantial distance from the intersection at the time the plaintiff’s car entered it. Also, I do not believe the testimony of Legendre that he applied his brakes for he is alone in this statement, not corroborated by any other witness or physical facts such as skid marks, and no on'e heard the application of any brakes, and, further, in view of his own testimony that he did not see the plaintiff’s car until practically the moment of impact and struck it head-on, without even swerving, and in view of the fact that he could have seen the plaintiff’s car when he was quite a distance from the intersection had he looked.

For these reasons I am of the opinion that the plaintiff is entitled to a judgment for the damages to his car which were duly proven on the trial of the case, as the driver of plaintiff’s car had preempted the intersection, and Legendre was negligent in driving at an excessive rate of speed and not keeping a proper lookout and failing to honor the preemption of the intersection by plaintiff’s car by slowing down and allowing him to proceed across as he had a right to do. I, therefore, respectfully dissent.