author: PALMER, J.

text:
    No. 4237
    Second Circuit
    LACY v. LUCKY ET AL.
    (April 5, 1932. Opinion and Decree.)
    (May 5, 1932. Rehearing Refused.)
    Reynolds, Hamiter & Hendrick, of Shreveport, attorneys fqr plaintiff, appellee.

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellants.
   PALMER, J.

Plaintiff brings this suit for damages to his automobile and for personal injuries resulting from a collision between his automobile and the automobile of defendant Lucky, which occurred on the Shreveport-Minden highway.

Plaintiff alleges that his car, while being driven in a westerly direction on the said highway, on his right-hand side of the road, in a careful manner, and at a moderate rate of speed, was run into and he was run over by defendant Lucky who was driving his automobile on said highway in an easterly direction, at a high, fast and reckless rate of speed, and on his left-hand side of the road; that the driver of his car, seeing that a head-on collision was inevitable, in an effort to avoid it swerved his car to the left but was hit by the car of defendant Lucky, resulting in damages to his automobile and to his person; that he could not have swerved to the right because there was a deep ditch on that side of the road which would have caused his automobile to turn over had he turned that way.

Plaintiff further alleges that his car was a new Ford coupe and was so badly damaged in the collision that it required repairs which were made at a cost of $363.25; that in the collision he was knocked unconscious from the,injuries he received to his head, neck, face, back, pelvis, spinal cord and legs; that for said injuries and for shock and mental suffering and for loss of time and earning capacity, medicine, drugs and doctor’s bills, he suffered damages in the sum of $22,500, making a total of $22,-863.25, for damages to his car and for personal injuries he received.

Plaintiff makes the Maryland Casualty Company a party to this suit, alleging that defendant carried insurance with them to protect him against loss or damages that might be occasioned by the operation of his car. The casualty company filed an exception of no cause or right of action, which was referred to the merits.

Defendants answered, denying generally plaintiff’s allegations of negligence, and averring that at the time of the collision and just prior thereto, plaintiff’s car was being driven at a fast and reckless rate of speed; that at a certain point the driver of plaintiff’s car suddenly and without warning turned to the (his) left, thereby bringing his car in front of the car of defendant Lucky in such a manner as to render it impossible for him to avoid a collision, and that whatever injuries plaintiff sustained were due entirely to his own fault in not having his car under proper control and in driving at a fast, reckless rate of speed, and in suddenly turning to the left, bringing his car in front of the car of defendant Lucky.

In the alternative, defendants pleaded contributory negligence on the part of plaintiff, barring his right to recover.

On these issues the case was tried, resulting in a judgment for plaintiff against both defendants in solido in the sum of $12,363.25. From that judgment defendants have appealed.

STATEMENT OF FACTS

The collision on which this suit is based occurred in the daytime, about 12 miles east of the city of Shreveport on what is commonly referred to in this section as the “Shreveport-Minden” highway. Plaintiff was traveling towards Shreveport (westerly direction) in a Ford coupe, which was practically new. He had picked up a lad, said to be about 18 years of age, and, upon learning that he could drive, turned his car over to him. There is no dispute over the fact that plaintiff’s car was being driven on the right side of the road until it swerved to the left just a moment or so before the collision.

Defendant Lucky was traveling towards Minden (easterly direction) in a Dodge coupe. He was doing his own driving. There was parked on the south side of the road (defendant’s right) a Model T Ford, with about half the car on the pavement. The collision occurred a short distance west of the parked Ford. After the collision, plaintiff’s car was found some few feet west of the point where the collision evidently happened. It was turned around, facing east. The car of defendant Lucky was found near the point of collision, sitting crosswise the road, facing north, with the front end near the center of the road.

Plaintiff contends that defendant Lucky was driving on the wrong side of the road at a rapid rate of speed and that his driver, seeing that Lucky appeared to be coming forward without any intention of turning back to the side of the road on which he was due to travel, in order to try to escape a collision, cut his car to his left, and as 'he did, defendant swerved his car to plaintiff’s left, striking plaintiff’s car near the center, causing the damages sued for.

Defendant Lucky contends that he was traveling on the right side of the road at a reasonable rate of speed and that the driver of plaintiff’s car, traveling at a rapid rate of speed and apparently losing control of the car, suddenly swerved to his left — defendant’s right — thereby bringing his car immediately in front of defendant’s car on the south side of the road, making it impossible for defendant to avoid running into plaintiff’s car.

OPINION

As we appreciate the situation on the proposition of liability, there are two principal questions presented for decision. They are:

1. Was defendant Lucky, just prior to the accident, driving his car on the wrong (his left) side of the road, thereby creating a hazardous situation, resulting in a sudden emergency that threatened the safety of plaintiff, making it necessary for him to take some steps to avoid what reasonably appeared to be an impending collision?

2. Confronting the hazard that faced him, if created by defendant, was plaintiff’s driver negligent when he swerved to his left in order to try to avoid the collision?

There are other questions that enter, to some extent, into the consideration of this case, such as the speed at which both cars were traveling at the time or just prior to the collision; and if defendant was on the wrong side of the road, was he there through carelessness and indifference, or through necessity?

But the question that transcends all others is the one regarding the side of the road on which defendant Lucky was traveling at the time or just prior to the accident. We shall therefore consider that question first.

Plaintiff did not seem tq know anything definite on this point. He was dozing at the time and aroused when his driver began blowing his horn. He then saw two cars in front of him, the parked Ford and the coupe driven by defendant Lucky. Lucky’s car, he said, was headed towards his car at an angle across the road, his car having swerved to his left in the meantime.

C. W. Fisher, the driver of plaintiff’s I car, testified that he was driving on his right side of the road and that defendant Lucky, after passing a car, continued on the wrong side of the road until the wreck.

J. M. Plummer, who resides in Monroe, saw the collision as he was returning to his home from Shreveport. Defendant Lucky passed him just prior to the accident, and was from 100 to 150 yards ahead of him when the two cars collided. He says Lucky, after passing him, traveled on the left side, going east towards Minden, until he met, or just before he met, plaintiff’s car, at which time plaintiff swerved to the south side of the road and about the same time Lucky likewise cut his car towards the south side of the road, whereupon the collision occurred.

Robinson Hilton, colored, who lived at Princeton, near where the accident occurred, after having ridden from Shreveport with another colored man who lives near the point where the accident happened, was standing on the roadside to catch another ride to his home, and saw the accident. He says defendant Lucky was traveling on the (his) left side of the road when the two cars were about to' meet, at which time Lacy’s car was cut to his left and Lucky, at the same time, cut his Gar to his right, bringing the two cars together in collision.

The defendant Lucky- testified that he was not on the (his) left side of the road, but, on the contrary, was on his right side at the time and that the driver of plaintiff’s car suddenly cut his car in front of him in a manner so as to make it impossible for him to avoid the collision.

The parties just named are the only persons who saw the movement of the cars just before they collided. All of them, except defendant Lucky, testified that Lucky was traveling on the wrong side of the road as he approached plaintiff’s car.

The trial judge rendered a written opinion in the case. He did not discuss the testimony of each witness individually, but gave a statement of his findings on the facts. That statement is as follows:

“The Court sees no good reason for taking up the testimony of each witness and commenting at length on same, as that is all in the record, but will simply state the Court’s findings on the facts, as follows: The Court believes it has been proven by a preponderance of evidence, that the Lacy car was being driven in a careful and prudent manner, on its right hand side of the road andi going at a rate of speed not excessive, that the driver, Mr. Fisher, on observing the approaching car being driven by Mr. Lucky, on his wrong or left side of the road, that the driver of the Lacy car blew his horn in warning and continued on his right side of the road until so close to the Lucky car that it seemed a headon collision would result unless one of the cars should swerve, and it appearing to the driver of the Lacy car, that Mr. Lucky was making nq attempt to avoid a collision, the Court believes that the driver of the Lacy car did the only reasonable thing that could have been done under the ¡circumstances and swerved to his left to let the Lucky car pass, as there appeared not to be room for him to pass to the right of said car, and that just as the Lacy car swerved to its left, the Lucky car suddenly swerved to its right and struck the Lacy car about midway of its right side, resulting in the collision.”

It will be seen that the trial judge found that Lucky was running his car upon the wrong side qf the road at the time he was about to meet plaintiff’s car. It is our conclusion that the testimony fully warrants that finding.

It will be noted that defendant Lucky emphatically denied he was using his left or the wrong side of the road. There is, therefore, no place for a discussion of his reasons for being upon the wrong side. It often happens that a traveler upon a highway is compelled to cross over to the left side of the rqad and travel there for some distance, and he may lawfully plead justification for such an act, but no such situation exists here, since Lucky denies that he used the (his) left side of the road, so, having held that he did, it remains only for us to conclude that he was grossly negligent in so doing and that he thereby created a hazardous situation, resulting in a sudden emergency, justifying plaintiff in employing such methods of escaping injury as were reasonable under the existing circumstances.

This then brings us to a discussion of the question: Confronting the hazard that faced him, if created by defendant, was plaintiff’s driver negligent when he swerved to his left in order to try to avoid a collision? Plaintiff was in nowise responsible for the hazardous situation producing the emergency from which his driver sought to escape. It is upon defendant Lucky alone that the responsibility for such a situation rests. He offers no reason whatever for his act of driving on the wrong side of the road. He simply contents himself with a denial of the charge. His negligent acts, therefore, created this emergency and were the proximate cause of plaintiff’s injuries.

In the case of Schick v. Jenevein, 145 La. 333, p. 338, 82 So. 360, 362, the Supreme Court of the state of Louisiana said:

“Where one is upon the wrong side of the traveled portion of the road, or has not conceded to the other party whom he has attempted to pass that portion of the highway to which he is entitled, and a collision occurs, the burden is upon him who so violates the rule to show that his act was not the proximate cause of the injury, or that there were justifiable circumstances which excuse his conduct.”

True enough, plaintiff’s driver saw for some distance that Lucky was traveling upon the wrong side of the road, hut he rightly assumed that Lucky would return to the proper side in ample time to meet and pass in safety. So it was not negligence on the part of plaintiff’s driver to go on in his travel. This he did until the two cars were about to meet and, suddenly realizing that defendant Lucky was apparently making no effort to get his car back to his proper side and that a head-on collision was imminent if he did not do something to avoid it, he concluded that the best way of escape was to swerve his car to the left, and as he did, Lucky at the same time swerved his car to his right, striking plaintiff’s car to the rear of the right front fender, at what appears to have been an angle of about 45 degrees, resulting in damages to both ears and in injuring both plaintiff and defendant. The driver of plaintiff’s car escaped injury.

Defendants urge that even if Lucky was driving on the wrong side of the road, plaintiff’s driver had a safe way of avoiding a collision by turning farther to his right, bringing his car out upon the shoulder of the road, or, in other words, bringing his car upon that space of the highway not paved, lying alongside the pavement. Even if it had been the duty of plaintiff’s driver to seek that particular method of escape, the facts do not sustain the contention that such was a safe way. There was a ditch about two and one-half to three feet deep paralleling the pavement. The shoulders of the road appeared to have been recently built, so, as a result of the unsettled condition of the ground covering this space, there were small ditches or drains running from the pavement to the large ditch that made it hazardous for a car to attempt to run over that space, especially if traveling at a rate of speed of 25 or more miles per hour. But the driver of an automobile, faced with a sudden emergency which he did not create and for which he is not responsible, is only required to exercise reasonable care governed by the circumstances then confronting him, in determining a method of escape from a threatened danger. He does not have time to deliberate, so even if there is more than one way of escape and that he chooses the most hazardous, he is not guilty of contributory negligence in so doing. In this case, we are of the opinion that the method employed by plaintiff’s driver was, under the prevailing circumstances, the 'safest method he had open to him.

Defendants’ counsel have ably presented their side of this case. Their argument on the law is both interesting and forceful. They contend that the mere fact that one driving upon the wrong side of the road does not relieve another meeting him, who is driving upon the right side, from exercising due and ordinary care to prevent a collision. We think they state the principle correctly, but disagree with them in their application of the principle to the facts in this case.

Due to the fact that the Louisiana courts have so often passed upon the question, it is not settled in our jurisprudence that a driver of an automobile, upon the right side of a highway, in order to avoid a head-on collision with an approaching car, which is traveling upon the wrong side, may cut his car to the left in an attempt to avoid an accident. This is based upon the principle that the driver of the approaching car, using the wrong side of the road, has thereby created a hazardous situation resulting in an emergency threatening injury to the car traveling upon the right side, from which the driver .of that car has a right, if his judgment at that time leads him to do so, to resort to the left turn in an effort to avoid an accident. The following is a fair statement of the rule adhered to by our own courts:

“An automobile driver, who by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence, placed in such a position, might make, even though he did not make the wisest choice.” See case note, 27 A. L. R. 1197.

In the case of Goodsqn v. Schuster’s Wholesale Produce Co., Inc., 10 La. App. 489, 120 So. 689, 691, in discussing a case in which the plaintiff had swerved his car to the left to avoid a collision with a car traveling on the wrong side, just as are the facts in the instant case, this court said:

“In this country, there have been established by long-continued customs and usages, certain rules regarding the rights and duties of those operating vehicles on public highways. These rules and regulations are commonly referred to as ‘the law of the road.’ Under the law of the road, those driving automobiles on public highways, on meeting another vehicle, must, if on the left side or in the center of the road, turn to the right. A failure to do so constitutes negligence unless there are conditions or circumstances which make such move dangerous or impracticable.”

In the case just cited (page 490 of 10 La. App., 120 So. 689, 691) the court further said:

“Plaintiff, in leaving his side of the road and attempting to cross over to the left in order to pass the truck on the other side, was not negligent under the circumstances. He acted under an emergency created by defendant and used his best judgment. The sudden emergency and peril did not arise because of his own negligence.”

Continuing, the court said:

“It may be argued that plaintiff, having seen the truck at some distance approaching on. the wrong side of the road, could and should have turned before he did and thereby averted the collision, or that he should have stopped his automobile on his side of the road. But, as already stated, the appearances were such as to cause a reasonably prudent man to believe that if he stopped the truck would run over him. As to whether he should have turned to the left sooner than he did, it must be said that he had a right to assume that the driver would observe the law and turn to his side qf the road.”

In the case of Potter v. Glassell, 146 La. 687, page 695, 83 So. 898, 901, the Supreme Court said:

“* * * if circumstances are such as to compel one to go to the left, it is not negligence to do so, but, in the absence of such justifying conditions, the duty of each is to concede to the other his side of the road. He who can, and does not, carries the burden of showing that his fault did not cause the accident. We think that the evidence shows that defendant did not turn to the right until a time when plaintiff had concluded that this would not be done; that there was not reasonably a sufficient space for plaintiff to pass with entire safety on the west; and that both started to turn to the east about the same moment, with the result that a collision occurred.
“Hence, a case of negligence is made out against the defendant, contributing proximately to the accident, and he is therefore liable for the damages occasioned.”

On the question of the claim qf defendant that plaintiff should have cut to the right and passed him on that space of ground between the pavement and the ditch, called the shoulder of the road, as we have already shown, the testimony in this case discloses that such could not have been done in safety, due to the deep ditch paralleling the pavement, and other conditions of the space between the ditch and the pavement, such as drains or ditches running crosswise from the pavement to the large ditch. But, even if it had been a better way than the way resorted to by the driver of plaintiff’s car, the choice made by plaintiff’s driver could not be charged against him as negligence.

In the case of Martin v. Cazedessus, 15 La. App. 100, page 103, 130 So. 129, 132, in discussing a similar question, the Court of Appeal of the First Circuit, said:

“The only other possibility of his avoiding the collision (and it seems that it would have been as much a probability as the course he followed) was for him to bring his car to a short stop in as near a distance as he possibly could. Granting that that would have been a better way to avert the accident, his choice of the other cannot he charged against him as negligence. Under the circumstances he was placed, a person is not held to the exercise of the same presence of mind and deliberate judgment as one who apprehends the danger and has sufficient time to avoid it.”

In the case of Willis v. Standard Oil Company of Louisiana, 17 La. App. 217, 135 So. 777, on page 780, the Court of Appeal for the First Circuit of Louisiana, in considering a case involving questions similar to those in this case, said:

“In an emergency thus created by defendant’s driver, plaintiff’s driver had the right to swerve from the right of the street to the left if there appeared reasonable prospect of avoiding a collision by so doing. The fact that the turn to the left failed to avert a collision did not relieve defendant’s driver from having been responsible for the collision, the sudden emergency having been prouuced by his fault.”

We might go on much more at length quoting decisions of the Louisiana Courts of Appeal and of the Louisiana Supreme Court dealing with cases such as we now have under consideration, but, as stated above, the right of a driver to turn to the left in an effort to avoid a threatened head-on collision with an approaching car, traveling upon the wrong side of the road, is too well fixed and recognized in the jurisprudence of our state to admit of serious argument, especially when the emergency the driver turning to the left is seeking to avoid was not created hy him.

It is our opinion the facts in this case clearly show a case of liability on the part of defendant Lucky.

ON THE EXCEPTION OP NO CAUSE OP ACTION PILED BY THE MARYLAND CASUALTY COMPANY

As we have previously stated, the exception of no cause or right of action filed on behalf of the Maryland Casualty Company was referred to the merits. During the trial, the rights of exceptor were preserved by timely objections to the testimony offered by plaintiff bearing upon the question of the insurance carried by the defendant Lucky with said company.

Plaintiff seeks to hold the Maryland Casualty Company liable in solido with the defendant Lucky, under the provisions of Act No. 253 of 1918, as amended by Act No. 55 of 1930. As a basis for his action against the insurance company, plaintiff makes the following allegations:

“That the Maryland Casualty Company had furnished the said George J. Lucky insurance on his automobile, which was in force at the time of this accident on the car which was in this wreck, protecting him against loss or damages that might be caused by the operation of said car, and is indebted, with said George J. Lucky in solido to your petitioner in the full sum above named and that amicable demand has been made in vain on both parties.”

This exception is based on the fact that the petition contains no allegations to the effect that the alleged insurance, though issued to the defendant Lucky, also inures to the benefit of plaintiff, or in other words, that the insurance was obtained, not only for Lucky’s protection, but also for the protection of plaintiff (and any other interested third parties), against any loss or damage he or they might sustain by Lucky’s operation of his automobile.

It will be noted that plaintiff did not describe the character of insurance Lucky may have had with said company, under which he claims protection for the recovery of such damages as he may be entitled to in this suit. The allegations stopped with the averments that Lucky only was protected against such loss or damages that might be caused by the operation of liis car. No allegation is made that plaintiff, or any third party, has any protection whatever under said insurance.

Plaintiff, having failed to make adequate allegations that under the insurance policy which Lucky is alleged to have, said company is bound unto him directly for the damages he sustained as a result of the said collision, has failed to disclose a cause of action against said company; therefore, the lower court improperly held said company liable in solido with Lucky. The exception of no right of action was properly overruled.

QUANTUM OF DAMAGE

The only medical testimony that was presented by plaintiff was that of Dr. IT. P. Clemmar, an interne at the Charity Hospital in the city of Shreveport, at the time plaintiff was carried there immediately following the collision. All Dr. Clemmar found wrong with plaintiff was that he had contusions on the upper lip and on the back. At that time he was semi-conscious, but, while there for a period of about thirty minutes, partly regained consciousness. All Dr. Clemmar did was to clean his wounds and put on dressings and strap his chest. He said that plaintiff was at the time suffering with pains in his back; that he was not injured at any other place; said he carefully examined him and found no injury to his head.

When plaintiff left the hospital, he was requesteu by Dr. Clemmar to return if any new uevelopment occurred. He never came back to the hospital, but the witness saw him again a few days before the trial, which was several months later. At that time he saw nothing wrong with him as a result of the injuries he received in this collision.

Dr. T. J. Fleming, being placed upon the stand by defendants, testified that just a few days before the trial he gave plaintiff a thorough examination and found that he had suffered no permanent injuries from the collision in question. He said plaintiff claimed to be suffering from pain on the left side of the neck, but he said that pain was caused by a tumor in that side of the neck, which had produced an enlargement, and with which plaintiff told him he had suffered for some five or six years; said he examined his back and found nothing wrong with it; that he started his examination at his head and found no abnormality, except the tumor in the neck, until he came to his hip, which trouble, plaintiff admitted, was the result of an injury he had received in an automobile accident in October, 1928. In other words, the substance of Dr. Fleming’s testimony is that plaintiff has no permanent injuries as a result of the collision on which he bases his claim for damages in this suit.

■Plaintiff contended that at the time of the trial he still suffered from the injuries received in the collision and was not able to do the same amount of heavy work he performed before the injury. We believe the following statement, which he made as a witness in his own behalf, about describes his condition at the time of the trial, from his own viewpoint:

“I cannot tell that is anything wrong with my back now, the only thing wrong with me now is strength in my neck and arms, I cannot raise up like I should, I don’t feel good in any position, .and I don’t have the strength now that I had.”

If this be a correct description of his condition at that time, it would seem certain a little later he would feel no evil effects from his said injuries. While plaintiff had the right to try his case in his own way, yet he could have helped the situation greatly if he had produced medical experts to show the permanency of his, injuries. Not having done so, and especially in the light of what he said, as well as what Drs. Clemmar and Fleming said, we have no hesitancy in saying no permanent injury was shown.

We are satisfied plaintiff suffered, considerable pain from the injuries he did receive, but that suffering evidently passed when he recovered from those injuries. According to his own testimony, he was only confined to his bed for a few days. He stated that he did not get better until he had some teeth extracted, whereupon he began to improve. Dr. Fleming stated that he was suffering with a severe case of pyorrhea, of long standing. This would indicate that much of his suffering was due to the condition of his teeth which existed long prior to the accident.

Plaintiff was engaged in. the business of selling clothes and carried a sample case. He claims that after the injury he was unable to continue to handle the large case he previously carried and therefore returned it to the company, afterwards using only a small one.

After a few days’ confinement at home, plaintiff personally drove his car to Monroe to resume his work, but found that he was unable to work. He says he was confined to his bed at Monroe for about a week and then drove on down to Ferriday where he was again confined to his bed for twelve or thirteen days. His contention is that he did not go to work regularly until January 20, 1931, after his injury on the 21st of October.

Having held this to be a case of liability, there can be no doubt that defendant Lucky must compensate plaintiff for the actual amount he spent, or contracted to spend, for repairs to his automobile. In other words, plaintiff should recover for physical pain and suffering and for loss of time and for damages to his automobile. In our opinion, the amount of damages awarded by the trial judge is excessive.

We think that for his physical pain and suffering, an award of $2,500 is reasonable. He claims he was earning from two to three hundred dollars per month. After three months, he went back to work regularly. In the meanwhile he worked only a portion of the time. We conclude, therefore, that he should be awarded damages for loss of time in the sum of $600. The actual damage to his automobile amounted to $363.25. These various items total the sum of $3,463.25, which is the amount of damages we think plaintiff should recover.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court against defendant, George J. Lucky, be and is hereby amended by reducing the amount of the award from $12,363.25 to $3,463.25; and as thus amended, it is affirmed, plaintiff to pay the cost of appeal.

It is further ordered, adjudged, and decreed that the judgment of the lower court against defendant Maryland Casualty Company, be and is hereby set aside and avoided, the exception of no right of action is overruled and the exception of no cause of action is sustained and the suit dismissed, at plaintiff’s cost, with full reservation of all plaintiff’s right against said company, under the alleged insurance of defendant Lucky with said company.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 4288
    Second Circuit (Second Division)
    POTTER v. ROBIN & CHERRY SHOWS, INC., ET AL.
    (May 4, 1932. Opinion and Decree.)

      Harry Y. Booth, of Shreveport, attorney for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellees.
   CULPEPPER, J.

Plaintiff brought suit against defendants for $865.29 with legal interest from judicial demand, and recovered judgment for only $292.94 with interest and costs, the remainder of the demands being rejected. The judgment was signed June 13, 1931. Immediately following the signing of the judgment, and before either party applied for an appeal, plaintiff’s and defendants’ attorneys agreed to settle the litigation on the basis of the court’s award, it being the understanding of plaintiff’s counsel at the time that settlement would be made within a reasonable time.

Plaintiff’s attorney wrote letters July 7th and 13th, 1931, to defendants’ attorney demanding settlement and on the 20th the latter attorney received from the former a statement of the amount of the principal, interest and costs called for under the judgment. Receiving no response, plaintiff’s attorney made numerous subsequent demands for settlement, and on November 4th received, through defendants’ attorney, a partial payment of $259.26. Further demands were thereafter made for the balance without avail, and on January 5, 1932, plaintiff applied for and was granted orders of appeal, the appeal being only from that portion of the judgment which was unfavorable to plaintiff. On January 25th following, defendants’ attorney tendered attorney for plaintiff the additional sum of $72, which was refused.

The transcript of appeal was filed in this court on February 1, 1932. On the 3rd of that same month defendant filed a motion to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment appealed from.

The case is before this court on the motion to dismiss, and is submitted on briefs without argument by counsel. Plaintiff’s brief, however, is upon both the motion to dismiss and upon the merits. But defendants’ is upon the motion only, and we shall confine our discussion to the motion to dismiss.

Plaintiff contends that the motion came too late, giving as reason that a motion to dismiss must be filed within three days after transcript is filed. The transcript was filed on February 1st and the motion on the 3rd, therefore this contention is without merit. It is contended by the mover that plaintiff has acquiesced in the judgment by agreeing to settle the litigation on the basis of the trial court’s award, also by voluntarily accepting payment of the greater portion of the award in accordance with the agreement; and that the fact that the balance was not promptly paid could give plaintiff no legal right to appeal, but only the right to issue execution for this balance.

A number of authorities on the question of the acquiescence in a judgment are cited by counsel for both parties. This question was discussed at length in the recent decision of the Supreme Court in Foster & Glassell Co., Ltd., v. Harrison et al., reported in 138 So. 99. In that case Judge Odom, as organ of the court, reviewed many of the earlier decisions of the court, which the court viewed as being in conflict with later decisions, with the result that the later decisions were adopted as prevailing.

The fundamental law on this question is article 567 of the Code of Practice, which reads:

“The party against whom judgment has been rendered cannot appeal. 1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily. * * *”

The word “against” in the article is construed to apply to the plaintiff as well as to the defendant, and plaintiff can execute on the portion of the judgment favorable to him and still have a right to appeal from that portion for which his demands were rejected. And if he acquiesces in that part which was in his favor, in any manner, it is not to be construed as an acquiescence in the part unfavorable.

As we view the construction placed upon the article of the Code, in the light of the now settled jurisprudence upon the question, as reflected in the Foster & (Hassell Co. case, so long as the acquiescence is as to the part of the judgment favorable to plaintiff only, and not as to the judgment as a whole, plaintiff can appeal from the unfavorable part; but if plaintiff acquiesce in the judgment as a whole, although he may have received payment and satisfaction of the part favorable to him, he cannot appeal. And that very contention is here made. To determine this question, it becomes necessary to ascertain the intention of the parties, especially that of plaintiff.

It is made clear that merely to abide by —that is, receive — so much of the judgment as was favorable tq plaintiff, is not in itself acquiescence in the whole judgment as rendered. Nor is it so when he merely executes — that is, enforces collection thereon. Nor can any act of his which does not evince clearly and unmistakably his intention to ratify or confirm the judgment precisely as rendered, be construed as an acquiescence.

None will be inferred when the act can be otherwise explained. Breaux v. Sarvoie, 39 La. Ann. 243, 1 So. 614; Succession of Easum, 49 La. Ann. 1345, 22 So. 364; Wells v. Files, 136 La. 133, 66 So. 749.

Paragraph 1 of the agreed statement of facts furnished to this court as constituting the basis of the motion to dismiss, reads (in part):

“That following the judgment — plaintiff’s counsel and defendant’s counsel agreed to settle the litigation on the basis of the trial court’s award, and plaintiff’s counsel understood that such settlement would be made within a reasonable time.”

This language can be construed to mean none other than an intention to acquiesce completely in the judgment, with only one condition so far as plaintiff was concerned, which was that settlement should be made within a reasonable time. Such was the understanding by plaintiff’s counsel. It is not shown that defendant’s counsel so understood it, nor that this feature of the agreement was discussed by them or stressed by her counsel. If no payment at all had been made on the amount, or if when the payment was offered, which was nearly four months after the agreement had been entered into, the offer had been refused as coming too late, plaintiff might have been justified in withdrawing from the agreement and appealing. But the sum offered, amounting to $259.26, was accepted under the agreement, and plaintiff indulged the defendant further for the balance, which was a comparatively small sum. It is not shown, nor even intimated, that defendant had refused tq make payment, or that he was insolvent. It appears from the statement of facts that a surety company was responsible for the amount of the judgment or some part of it, from the fact that plaintiff’s counsel wrote to or wired it demanding settlement of the amount. We do not find any surety bond in the record, but the returns on the writ of attachment show the seizure of some property of defendant, known as a “merry-go-round.” We take it that this property was still within the jurisdiction of the court or that a bond was outstanding in lieu thereof. Therefore, it would appear that there could be no doubt that plaintiff could have easily realized the small balance on the judgment under an execution, and without expense. Defendant, too, was a non-resident, whose business carried him from place to place over the country, and his counsel, although in perfect good faith and using due diligence, no doubt experienced difficulty and delays in communicating with such a client. We do not think plaintiff should be excused from the obligation contained in the agreement after her own acquiescence in the delays, unless it had been shown that defendant or his counsel had acted in bad faith and delayed purposely, or that plaintiff was unable to enforce collection. The only excuse plaintiff offers for her decision to appeal was the delays incidental to securing a settlement. Since these delays are not shown to have been willful on the part of defendant, or made for the purpose of prolonging settlement; and since plaintiff voluntarily accepted the greater part of the amount, and could apparently have realized the balance without expense, we do not feel warranted in holding same as affording plaintiff a reasonable ground for disregarding the solemn agreement to settle the litigation on the basis of the trial court’s award.

It is cur view, therefore, that acquiescence has been shown, from which there can be nq appeal. The appeal is therefore dismissed.


author: MOUTON, J.

text:
    No. 961
    First Circuit
    McCRANEY v. HAMMOND COCA COLA BOTTLING CO.
    (May 3, 1932. Opinion and Decree.)

      Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellee.
    A. W. Spiller, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

First street runs north and south through the town of Amite; Oak street east and west.

Plaintiff was driving his. auto northward on First street, and made a turn at the intersection of the two streets, going eastward on Oak street. A truck belonging to defendant company was parked on Oak street about twenty or thirty feet from the corner where First street intersects Oak street from the south; the front part of the truck touched the curb of the sidewalk on the south side of Oak street. Mr. Brumfield was the driver of the truck.

While backing the truck, the collision occurred with plaintiff’s auto which had turned the corner while going eastward on Oak street.

Brumfield says he did not see -plaintiff or his car until after the collision. The fact is that it wás by the impact that he found out that a collision had occurred. He first saw the car, he testifies, when it had stopped on the east side of the truck, at about twenty feet therefrom. It is therefore certain that he did not see plaintiff’s auto when it was approaching the corner, after it entered the intersection, or when it made the turn in Oak street.

Mr. Fajoni, witness for plaintiff, saw when the car plaintiff was driving was struck by the rear end of the truck. The noise caused by the crash, he says, first attracted his attention. This witness states that he did not see plaintiff’s car as it approached the corner from the south, the direction it was traveling on First street; and necessarily could not estimate the rate of speed at which it was moving at that time. He first saw plaintiff’s car, he testifies, as it v,*as making the turn, but could not and would not make an estimate of the speed it was then making. There is nothing to indicate in his testimony that plaintiff was driving at an excessive rate of speed. This witness says that plaintiff’s auto was nearly turned over when it was struck by the truck.

Mr. Russell was sitting across the street from where the truck was parked, and heard the wreck. He did not see plaintiff’s car as it was coming up First street, when it -turned at the intersection, or before it collided with the truck; and at that time, according to his testimony, the truck had backed at a distance of eight or ten feet from the curb, which Fajoni had fixed at about three or four feet.

Russell says that the auto was “cocked up” about halfway by the impact, and would have gone over if the truck had not rolled back to the curb.

Neither Russell, Fajoni, nor Brumfield, driver of .the truck, saw plaintiff’s auto as it was coming to the southeastern corner of the intersection. Fajoni is the only witness who saw the auto turn the corner and as it proceeded eastward on Oak street, hut could form no estimate of the speed it was then traveling.

Plaintiff is the only witness who testified in reference to the speed he was making when he approached the corner. His statement is that he had cut off the gas and was then going about fifteen miles an hour. There is no contradiction of this statement by any witness, which defendant sought ■to discredit by Mr. Dixon, who said that a block further south from the corner plaintiff had passed by a garage, going at forty or forty-five miles an hour, but this witness said there is nothing unusual in going at that speed and then stopping at the ■ next corner. Plaintiff admits he was going about twenty-five or thirty miles an hour when he passed the point where Dixon saw his car pass by the garage. The estimate of the speed of an auto is always difficult to make, and is rarely accurate, and there is nothing making it improbable that plaintiff was then traveling at about the speed to which he .testified.

When he approached the corner, plaintiff says, he slowed down and reduced his speed to about fifteen miles an hour; and there is no testimony to the contrary. He further testifies that, when he reached at about six or eight feet from an iron sign at the center of the intersection, he turned into Oak street, made a broad turn, when suddenly the .truck backed into his pathway, and that in his endeavor to avoid the collision he accelerated his speed, but that, notwithstanding his efforts in that direction, the truck struck his auto back of his seat, but that he, however, escaped receiving personal injuries which otherwise would have resulted from the accident. His testimony is that, as he rounded the corner, he saw the truck standing still, and could see no one in it, and that “it backed out all of a sudden,” and made it impossible to avert the collision, which had the effect of tipping his car and shoving it up on two wheels, and that he thought he was “going over.”

There is no testimony in this record to show that plaintiff was going faster than fifteen miles an hour when he turned the corner, and that he missed .the iron sign in the center of the intersection by more than six or eight feet when he made the turn. There is no testimony to the contrary, and, in .the absence of some facts or circumstances arising in the case which would have the effect of contradicting plaintiff’s testimony in that respect, his statement in reference thereto should be accepted as true.

In order to weaken plaintiff’s evidence on this subject, counsel for defendant refers to the distance at which the auto was stopped eastward of the rear end of the truck after the collision. ’ Brumfield, the truck driver, fixed that distance at about twenty feet, and Russell, witness for plaintiff, at twenty-five or thirty feet.

The contention of counsel for defendant is that it could have been stopped in a much shorter radius. It is probable that, under ordinary circumstances, if the auto had been going at fifteen miles an hour at the time of the accident, it could have been brought to a standstill within a shorter distance than either twenty or .thirty feet. Here, however, it appears, from the testimony of plaintiff, which is uncontradicted, that, when he realized he would collide with the truck, he put on gas and accelerated his speed, as we have herein-above stated. This explanation accounts for the fact that the auto moving under an accelerated rate of speed continued on its, eastward course to .the distance of either twenty or thirty feet from the rear of the truck. No doubt the lower court adopted that view of the case in which we can find no error.

It cannot be said, under the circumstances as above related, that plaintiff was at fault or negligent in thus turning the corner at the intersection of those streets and in continuing on his way to the east, when, to his surprise, the truck was suddenly backed by its driver northward across Oak street.

The evidence of the plaintiff, likewise that of Fajoni and Russell, shows that the auto was tilted at a considerable angle when it was struck by the end of the truck, and came near being turned over. This fact shows that it was being backed with considerable force when the impact took place. It is shown that this truck is about fifteen feet long, and therefore occupied, when it was touching the south curb of Oak street, about one-half of the way, measuring from the center line of that street, which is shown to be sixty feet in width. As such was the length of .that truck, it took but a few feet of backing from the curb to have its rear part protrude to a dangerous point in that street, so as to impede the passage of cars .turnning that corner at that intersection.

Brumfield, driver of the truck, says he looked to the east, behind, through a mirror, and westward to the corner in question, before backing the truck, that he could see in all directions, and .that he did not see plaintiff’s car at all.

Obviously, Brumfield was sitting on the left side of the cab when he got in to move it backward, and was not in an advantageous position to see westward where .the auto was approaching the corner. In that direction, it seems that he had a window through which he could look for autos, or vehicles traveling in that way. He had bottles in the truck, but says that he could see over the top of the bottles.

It is possible, as explained by him, that, with the mirror in the truck, and the window, he could see in all directions sufficiently well to avoid colliding with other vehicles. It is certain, however, that he did not see the plaintiff’s auto until it had passed to the rear of the truck, and had been stopped to the east of it.

The foregoing analysis of the evidence justifies the conclusion that the truck was backed too suddenly and too far into Oak street by its driver, Brumfield, and which was the proximate cause of the accident; that plaintiff was not at fault, and could not avoid the collision.

Counsel for defendant contends, that plaintiff should have minimized the damages claimed for the repairs to his car by accepting an offer made to have the work done for a smaller amount.

The proof shows that plaintiff had the repairs made by the Capitol City Auto Company of Baton Rouge, from which he bought the car. He testifies that his ear was new, and that he wanted a good job done. It is proved that the repairs made were necessary, and that no overcharges were demanded by .the Capitol City Auto Company. Plaintiff had the right to have his car repaired by the company from which he had purchased it, and could not be controlled in having the repairs made by a company in which, perhaps, he had no confidence. If the charges of the Capitol City Auto Company were out of proportion to .their value, or exorbitant, there would be ground for a reduction of the amount charged therefor, but, as the price demanded is legitimate and the work is satisfactory, defendant is not entitled .to a reduction on its plea to have the damages minimized.


author: LeBLANC, J.

text:
    No. 947
    First Circuit
    GUARANTY INCOME LIFE INS. CO. v. BALL ET AL.
    (May 3, 1932. Opinion and Decree.)
    E. S. Muse, of St. Francisville, attorney for plaintiff, appellant.
    Jos. L. Golson, of St. Francisville, attorney for defendants, appellees.
   LeBLANC, J.

This is a , suit on two promissory notes of $108.85 each, dated April 3, 1929, and payable August 1, 1929, made and signed, in solido, by B. H. and H. P. Ball, the defendants herein. Judgment is prayed for against both defendants, in solido, for the aggregate amount of both notes, with 8 per cent per annum interest from August 1, 1929, and 15 per cent as- attorney’s fees.

The defendants are brothers, who plead that the notes are null and void for want of consideration. Their defense is that these notes were given in paynfent of the premium of two policies of life insurance taken by each of them with the plaintiff company in the sum of $2,500, but which the plaintiff failed to issue or deliver to them as it had contracted to do. As a further defense, they plead that they were to receive as additional consideration, one certificate or share of stock in the plaintiff company for each $1,000 of life insurance issued, which they never did get.

From a judgment rejecting the plaintiff’s demand and dismissing its suit, it has taken this appeal.

We believe that the defense with regard to the issuance of the certificate of stock can well be said to have been abandoned, as we find no reference whatever made to the same in brief of counsel for defendants. However, if it be still considered an issue in the case, we do not believe that there is any merit in it as a defense, for certainly there is nothing in the application for insurance by the defendants, to support such claim. In fact, one of them, when asked to relate the whole transaction that took place regarding the issuance of the policies, says that Mr. Means, who was the plaintiff’s agent, came to him and offered him the insurance. “For every $1,-000.00 of insurance that we bought” he says, “we were supposed to receive one share of stock in the company, and I thought it a good thing and applied for it.” There is, at the foot of the application, an authorization designated as a “Reservation for stock” to the Guaranty Life Insurance Company, to hold the cash "dividends which will accrue from the policy as payment for certain stock, preferred and common, in the Guaranty Bond and Finance Company, Inc. We are unable to see what connection such authorization has with the claim here made for stock in the plaintiff company. On the other hand, if the defendants base their claim on any representations that may have been made to them by the soliciting agent, Means, as appears to be their contention, they are then met with a clause in the application that any statements, promises, etc., made by the person taking the application, shall not be binding on the company unless they are reduced to writing and presented to the officers of the company, at the home office, in the application itself. It is not pretended that there were any such promises or representations made in that manner, and therefore the company cannot be held ,to any.

The principal defense rests on the following clause contained in the application: “That there shall be no contract of insurance until a policy shall have been delivered to me and the first premium paid to said company, or its duly authorized agent, during my life time and good health.” The defense of want of consideration is based on what is alleged to have been the failure of the plaintiff to deliver the policies under the stipulation. In as much as the obligation to deliver the policy on the part of the company is connected with an obligation on the part of the insured to pay the first premium, to bring the insurance into existence, and that this very suit is predicated on notes representing, not the original or first premium, but a renewal thereof, it is somewhat difficult to reconcile the position now assumed by these defendants with their actions in executing such notes. The giving of the notes and their acceptance constituted a payment of the premium. The company thereby waived its right to demand a cash payment. Besides, there is no doubt, from the testimony of Mr. Groves, vice-president and agency director of the plaintiff company, that the policies were issued and reported to the state insurance board, constituting a still further waiver on its part for a cash payment.

The defendants contend for a rather technical construction of the clause they rely on when they insist that delivery of the policies should have been made to each of them personally. We believe that the evidence fairly establishes the fact that they were delivered by Means, the agent, to a Mr. W. R. Daniel, who kept them in a vault, and that the defendants knew that they have been so delivered and were there kept for safe-keeping. Indeed, one of the defendants., H. B. Ball, comes dangerously near admitting that he knew they had been so delivered and were there. He is asked:

“Q. Where was the policy?
“A. I understand Mr. W. R. Daniel has it.
“Q. You said you understand, who said so?
“A. Mr. Means said they would be there.
“Q. Who is Mr. Means?
“A. Agent.
“Q. The agent who took your application?
‘‘A. I don’t know.
“Q. How come him to tell you the policy was left with Mr. Daniel?
“A. I don’t know that.”

This testimony does not impress us as being that of a witness who is telling or wants to tell all that he knows about the matter he is being interrogated on. This view is strengthened by a further admission he unintentionally makes, when, in relating the whole transaction as heretofore referred to in this opinion, he says: “The policy arrived, they (evidently meaning both policies) came to Mr. Daniel’s office and there wasn’t any stock with them. That’s all.” It seems obvious that the reason he did not take the policies from Daniel’s was because the stock he expected to receive was not there. In this, explanation of the transaction by this defendant, we believe we have conveyed to us the real motive they had in resisting the payment of these notes. They had been led to believe that they would participate in the capital stock of the company, and they were disappointed when the representations made to them by Means did not materialize. As has already been stated, however, they were representations, by which the plaintiff was not bound, and the failure to carry out which could not alone defeat its recovery on these notes.

Groves testifies that after they had been issued the policies were given to Means, the agent, for delivery, and he was required to have both insured sign an extra premium rider because of some physical impairment. These riders are in evidence and show that they were signed by both defendants, in the presence of Means, on May 3, 1928, several weeks after the policies had been issued. Groves says further that he knew the policies, were in Daniel’s vault, and that defendants also knew that they were there because he had told them so.

The circumstance relied on the strongest as affecting the plaintiff’s case arises from the failure of Means, the agent, and Daniel to have testified, and the absence of any explanation in that regard. We are of the opinion, however, that it is a circumstance which only gives rise to certain presumptions, and that it is outweighed by the undisputed fact of the giving of the notes by the defendants for the first premiums on the policies and their renewals without ever having questioned the delivery of the policies, more than one year after they had been written.

It is urged on the part of the defendant B. H. Ball, that he did not isign the application for insurance, did not consent to the increase of rate, and in fact knew almost nothing whatever about the matter. It is contended therefore, that even though the consent in change of rate be considered as evidence of delivery that was binding on IT. P. Ball, it cannot affect B. H. Ball, who never gave his consent thereto. We find the testimony of B. PI. Ball to be of a very passive character. It seems as though his brother was the one who conducted most of the negotiations, for him, but we believe that he was fully aware of what it was all about. He stood the required medical examination and sighed the blanks in connection therewith, and he also admits signing the original and renewal notes. We believe that he had the knowledge which the evidence shows his brother had of the delivery of the policies to Daniel, and in whose possession they remained with their implied consent. ' He was thus constituted their agent for the purpose of delivery of the policies. It was not a manual or personal delivery to them, but it was a constructive delivery, which, we believe, had the effect of fulfilling the company’s obligation under the contract.

We are of the opinion that the trial judge improperly rejected the plaintiff’s demand and dismissed its suit, and that judgment should be rendered against the defendants, as prayed for.

For the reasons stated, it is therefore ordered, adjudged, and decreed that the judgment of the district court be, and it is hereby reversed, set aside and annulled, and it is further ordered, adjudged, and decreed that there be judgment in favor of the plaintiff Guaranty Income Life Insurance Company, and against the defendants Ben H. Ball and H. Perkins Ball, in solido, for the full sum of $217.35, with 8 per cent per annum interest from August 1, 1929, until paid, together with 15 per cent of said amount as attorney’s fees.

Defendants to pay the costs in both the district court and this court.