text:
    No. 13,686
    Orleans
    QUATRAY v. WICKER ET AL.
    (April 27, 1931. Opinion and Decree.)

      Gasper Bossetta and M. C. Scharff, of New.Orleans, attorneys for plaintiff, appellant, appellee.
    Milner & Porteous and P. M, Milner, of New Orleans, attorneys for defendant, appellee Marchesseau.'
    Wm. H. Talbot, of New Orleans, attorney for M. Wicker, defendant, appellant.
   HIGGINS, J.

Dominick Quatray, individually and in behalf of, his minor son, Austin Quatray, sued Michel Wicker and Harry F. Marchesseau in solido to recover medical expenses for his own account and damages for personal injuries and loss of wages in behalf of his son, claimed to have been sustained as a result of an automobile collision near the intersection of London avenue and Gentilly road, this city, on Oclober 14, 1929, at 9:15 a. m.

The petition alleges that the accident was caused through the joint and concurrent negligence of Wicker and Marchesseau.

Wicker, through his minor son who was driving his truck, is charged with being at fault in the following respects:

“(1) In driving across Gentilly road without stopping as required by the traffic ordinance of the city of New Orleans: (2) in driving across the highway at a high rate of speed; and (3) in not keeping a proper lookout.”

Marchesseau’? negligence is said to have consisted of the following acts of commission and omission: (1) Operating his car at an excessive rate of speed in violation of the traffic ordinance; (2) dn failing to keep his car under proper control; (3) in not keeping a proper lookout, particularly when Ms view of the highway was obstructed.

Wicker denied liability averring that the negligence of Marchesseau in operating his car at a reckless rate of speed without maintaining a proper lookout and in failing to keep his car under control were the sole and proximate causes of the accident. He admitted, however, that his truck crossed without stopping as required by the traffic ordinance. He further specially pleaded assumption of risk by the injured boy and also that the young man was guilty of contributory negligence.

Marchesseau answered denying liability and alleging that Wicker was solely at fault in causing the accident because his son drove from an obscure place across the highway at a fast rate of speed without stopping, in violation of the city ordinance; that the injured boy assumed the risk, as he knew, that Wicker’s son was a fast driver; that Wicker, Jr., was tried and convicted in the criminal district court under the State Highway Traffic Act for operating his truck in a reckless and careless manner and causing personal injury; and that he (Marchesseau) was acquitted on the same charge.

There was judgment in favor of Dominick Quatray against Michel Wicker in the sum of $294 for medical expenses, and in favor of Austin Quatray against Wicker in the sum of $2,000, $1,500 for his injuries and $500 for loss of wages. Plaintiff’s suit was dismissed as to Marchesseau. Plaintiff and Wicker have both appealed, and plaintiff further answered the appeal and asks that the award of damages for personal injuries be increased.

From the record we gather the following to be the facts of the case as were substantially alleged in the petition:

Austin Quatray, age 18, was employed at Dhke’s Service Station at a weekly wage of $15. The station is situated on the lake side of Gentilly road at the intersection of London avenue. On the morning of 'the accident Michel Wicker and his minor son, who was driving his father’s National three-fourths ton truck, stopped at the service station and requested that an employee be permitted to go on the truck in order that it might be returned for the purpose of having it greased. " Austin Quatray boarded the truck, which drove off while he was on the running board and climbing over the side to get into the body of the truck where he seated himself on some milk cases. The truck was driven at a 45-degree angle in the direction of Chef Menteur or away from the city from the garage, which is located about 75 feet back from Gentilly road. Young Wicker drove the truck at about fifteen miles per hour, and, without stopping, crossed the roadway at a point about 15 feet from ¡the end of the London avenue canal bridge, which is located 142 feet from the garage. This bridge is about 107 feet in length, Gentilly road on both sides of the bridge has a slight curve in it, and London avenue intersects Gentilly road on the New Orleans side of the bridge. The defendant Marchesseau was driving a Buick sedan towards the city of New Orleans on the right-hand side of the Gentilly road. Due to the fact that the bridge is elevated and fhe approach from both sides is on an incline and further- on’ account of the concrete balustrades and railings on the bridge, as well as weeds - which have grown up adjacent to it, the views of the drivers of both machines were obstructed from seeing each other until the Buick was on the bridge and the truck was about to enter the asphalt portion of Gentilly road. The machines collided1-15 feet from the New Orleans end of ■ the bridge; the extreme left side of the Buick striking the left side of the.-truck just back of -the cabin where the driver was seated, causing both cars to be thrown to their- respective right sides of the road.

The truck came to rest on the bridge, with its rear end adjacent to the city side of the bridge. The Buick stopped about 40 feet from the point of collision. Austin Quatray was found on the lake side of Gentilly road near the end of the bridge ■where the cars collided and at - the - foot of a small levee which comes up to the balustrade of the bridge on the lake side. He ' was unconscious and badly injured, and was taken to the hospital for treatment.

Plaintiff clearly proved that Wicker’s son, who - was driving the truck, was at fault in failing to stop his car as' required by the Traffic Ordinance 7490, C. C. S., and in driving across Gentilly road, a public highway, at 15 miles per hour without keeping a proper lookout. He was guilty of gross carelessness and negligence.

The next question is whether Marchesseau was guilty of negligence that contributed to the accident. He states that he was driving his car at a rate of speed of about 25 miles p,er hour, on the right-hand side of the road going in the direction of New Orleans; that he first noticed the Wicker truck when he was about the mid-die of the bridge and the truck’s front wheels were about to come upon the asphalt portion of Gentilly road; that he was unable to turn on account of being on the bridge, and, as he came to the New Orleans end of the bridge, he attempted to swerve to the right and at the same time applied his brakes, causing his car to skid so that the left rear side of it struck the truck as above described; that the truck was crossing the road at an angle about 15 feet from the New Orleans end of the bridge; that his view of the truck was obstructed, due to the fact that there is a declivity in the road on account of the bridge being elevated and the approaches to it being on an incline and also because of the weeds and the concrete balustrades of the bridge.

Wicker, Jr., testified that in his opinion the Buick car was going about 40 miles per hour.

Gentilly road is a portion of the Louisiana highway system, forming a part of route No. 61 under the provisions of Act No. 294 of 1928.

Section 5, “Restrictions on Speed,” sub-sec. (a) of Act No. 296 of 1928, reads as follows:

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as .to endanger the life, limb or property of any person.”

Subsection (b) of section 5 of the same act provides:

“Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding'the following, but in any case when such speed would be unsafe it shall not be lawful.”

Paragraph 3 of subsection (b) of the same section provides:

“Fifteen 'miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s, view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic, upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.”

Subsection (c) of the same section reads, as follows:

“Local authorities in their respective jurisdictions are hereby authorized in their discretion to increase the speed which shall be prima facie lawful upon through highways at the entrances to which vehicles are by ordinance of such local authorities required to stop before entering or crossing such through highways.”

Section 29 of the act reads as follows:

“The driver of a motor vehicle traversing defiles, hills or hilly highways shall hold such motor vehicle under control and as near the right-hand side of the highway as reasonably possible and upon approaching any curve where the view is obstructed within a distance of two hundred feet along the highway shall give audible warning with a horn or other warning device.”

Article 2, paragraph B, of Ordinance 7490, C. C. S., known as the Traffic Ordinance, reads as follows:

“All vehicles when crossing any bridge will not exceed a speed greater1 than eight miles per hour while crossing.”

It would therefore appear to us that, according to Marchesseau’s own statement, he violated the provisions of both the traffic ordinance and the state highway-traffic statute, and was therefore guilty of negligence which contributed to the accident.

This court has held that a driver is guilty of negligence in operating his car at such a rate of speed that he is unable to stop within a range of his vision. Parlongue v. Leon, 6 La. App. 18; Raziano v. Trauth, 15 La. App. 650, 131 So. 212; Pepper v. Walsworth, 6 La. App. 610; Southall v. Smith, 151 La. 967, 92 So. 402, and 27 A. L. R. 1194.

We further observe, with reference to the negligence of Marchesseau, that he stated that, when he was in the middle of the bridge, he first observed that the truck was going to cross his path. The length -of the bridge is 107 feet. The truck, according to Marchesseau’s testimony, attempted to cross 15 feet from the New Orleans. end of the bridge and, therefore, Marchesseau would have had 68% feet within which to have stopped his car if he had applied his brakes. He testified that his car was equipped with four-wheel brakes. Therefore, if they had been applied at the time he first saw the truck, he would have been able to stop in order to have avoided the accident.

It has been held that, where i a driver of an automobile has created a dangerous situation,, he will not be heard to excuse himself on the plea that, owing to that condition, he could not avoid the accident. Dill v. Colley, 3 La. App. 305; Stout v. Lewis, 11 La. App. 503, 123 So. 346, 348. Youman v. McConnell, 7 La. App. 315; Thornhill v. Yellow Cab Co., 6 La. App. 787.

We have come to the conclusion that the accident was caused through the joint and concurrent negligence of the drivers of both machines, and therefore defendants are liable in solido, unless the special defenses or errors complained of are well founded.

We shall now take up the special pleas.

We are of the opinion that defendant Marchesseau’s special plea of assumption of risk and contributory negligence by, the injured boy in climbing from the running board into the body of the truck and seating himself on the milk cases while the truck was in motion is without merit. In Stout v. Lewis, supra, we said:

“It is not sufficient to say that he would not have been hurt, if he had not been on the running hoard, because he might have remained upon the running board until he had reached his destination without injury, but for the negligent management of the car, on the running board of which he was riding; a fisk which he did not assume.”

See, also, Hogan v. New Orleans Public Service, 16 La. App. 637, 131 So, 756.

Counsel for Wicker complaims of the ruling of the trial court in excluding evidence, which was timely objected to, and offered for the purpose of tending to show that the injured boy was guilty of contributory negligence because he knew that the driver of the truck, Michel Wicker, Jr., was a fast driver. This evidence was excluded by the trial court on the ground ■that a mere allegation in the answer that the plaintiff’s son was guilty of contributory negligence is simply a conclusion of law, and that, in order to properly plead contributory negligence, it is necessary to set up such facts relied upon as constituting contributory negligence.

The defendant Wicker in his answer merely alleges:

“Further answering, your respondent pleads contributory negligence in the event it is found that the driver of the Wicker truck was in any way guilty of negligence, which is,specially denied.”

We are of the opinion that the trial court’s ruling is correct. Vidrine v. Evangeline Gravel Co., 6 La. App. 468; Frierson v. Shreveport Grocery Co., 3 La. App. 44; Breen v. Walters, 150 La. 578, 91 So. 50.

The defendant Marchesseau avers in his answer that thicker, Jr., was convicted of reckless driving and causing personal injury under the state highway traffic statute (Act No. 296 of 1928) in the criminal district court and -that he (Marchesseau) was acquitted of the same charge. Statements to this effect were admitted without objection. It is argued that the conviction and acquittal in criminal cases should be considered as evidence by us. The whole question is discussed in Interstate Dry Goods Stores v. Williamson, 91 W. Va. 156, 112 S. E. 301, 31 A. L. R. 261, in which appear many cases maintaining the. doctrine that evidence of prior conviction or acquittal is inadmissible in a civil suit.

See Stone v. U. S., 167 U. S. 178, on page 184, 17 S. Ct. 778, 780, 42 L. Ed. 127, in which the Supreme Court said: .

“In our opinion, tlie record of the criminal proceedings in the court in Idaho was not evidence to establish or disprove any of the material -facts involved in the civil action.”

In 3 Orl. App., page 356, Lennon v. Palmer Co., on page 359, this court, in commenting on -the action of the trial judge in refusing to admit, in a civil damage suit, evidence showing an acquittal in a criminal court, and in refusing to- admit the introduction of evidence ’adduced in the criminal trial, said:

“Both rulings are correct; the prosecution was by the City and the present plaintiff had no power to cross examine the witness, and the judgment of a criminal court has no effect on a civil court, which is charged with the duty and power to determine ior itself all the issues arising in a, civil suit.”

In Jones’ Commentaries on Evidence, sec. 1816, is found the following:

. “Although the same fact may be involved in two cases, one civil and the other criminal, the parties are .necessarily different, for one action is prosecuted by the individual, the other by the State. Accordingly, by the weight of . authority, the judgment in one case is not generally admissible in the other to establish the facts on which it is based.”

See, also, Steel v. Cazeaux, 8 Mart. (O. S.) 318, 13 Am. Dec. 288; Lewis v. Petay-vin, 4 Mart. (N. S.) 4; Pober v. Sterbcow, 14 Orl. App. 164; New Orleans Ry. & Light Co. v. U. S. Fidelity & Guarantee Co., 145 La. 364, 82 So. 372.

The only case in this state that we have been able to find that supports defendant’s contention is Bankst'on v. Folks, 38 La. Ann. 267, .in which it. was held that the verdict in. a criminal case was ad,missible in a civil. case- but not binding on ■the civil court. This decision is not in accord with the other cases, supra.

We hold that the conviction or acquittal in a criminal case growing out of the same matter or transaction which gives rise to a civil case is not evidence and should not be admitted by the court in a civil case.

As to the quantum, the doctor who treated the injured boy stated that he suffered a lateral fracture of both clavicles, severe laceration of the tongue, severe brush burns and contusions, a contusion and injury to the chest; that he had fever for several days and was threatened with pneumonia; that he was confined to the hospital for forty-one days and was treated several times after returning home; that he sustained severe shock and suffered a great deal of pain; and that there was some nerve injury.

Austin Quatray stated that he had an injury to his little finger and that one-half of the center fingers of both hands were somewhat calloused, and he still feels the effect of the injury, the nerves being dead, and that, although he was treated at the hospital for these injuries, these fingers are numb. He was incapacitated for nine months.

, The trial court allowed the sum of $1,500 for pain, suffering and injury. We believe this amount reasonable and fair. The court also allowed the sum of $500 for loss of wages and $294 for medical expenses. We believe that these items were adequately proven.

For the reasons herein assigned, it is ordered that the judgment appealed from in favor of defendant Harry F. Marchesseau and against plaintiff, Dominick Quatray, dismissing plaintiff’s suit) be reversed, and it is now ordered that there be judgment in favor of plaintiff, Dominick Quatray, in his individual capacity in the sum of $294 and as representative of his minor son, Austin Quatray,¡ in the sum of $2,000, and condemning Harry F. Marchesseau together with the co-defendant Michel Wicker in solido, and in all other respects the judgment is affirmed. Defendant to pay all costs.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,641
    Orleans
    HAYWARD v. WAGNER
    (May 25, 1931. Opinion and Decree.)
    Warren M. Simon, of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff seeks to recover the sum of $203, covering damages to his automobile said to have been sustained as a result of defendant’s car negligently col liding with it at the intersection of' Sev enth and Prytania streets, this city, about 9 o’clock, June 12, 1930.

The petition alleges that the defendant’s minor son, who was driving his ear, was at fault in running the car at an excessive rate of speed and. in failing to stop before entering the intersection of a right of -way-street, in violation of the traffic ordinance of the city of New Orleans.

The defense is that the defendant’s car had traversed more than half of the intersection when plaintiff’s car entered it and, therefore, obtained the right of way under the traffic ordinance; and that the accident was caused solely through the negligence of the driver of plaintiff’s car in operating it at an excessive rate of speed and without keeping a proper lookout. Defendant also pleaded contributory negligence and in reconvention asks for damages in the sum of $286.60, averring that the driver of plaintiff’s car had the last clear chance of avoiding the accident.

There was judgment in favor of plaintiff as prayed for and dismissing the re-conventional demand and defendant has appealed.

The record shows that the plaintiff’s Hudson sedan was being driven up Prytania street by a lady relative of his, on its right-hand side of the street, with its right wheels near the center of the uptown car track. Plaintiff was sitting beside the lady in the front seat.

Defendant’s seven-passenger Nash sedan was being operated by his 18-year-old son on Seventh street in the direction of the Mississippi river near the center of the street. There were three young couples sitting in the rear of the car.

Prytania street is a two-way paved thoroughfare having a double set of street car tracks thereon, those on the lakeside being used by cars moving uptown and those on the riverside by cars going downtown. Seventh street is also paved and runs from the river to the lake and has no street car tracks located on it.

On the downtown lake corner is a large iron fence and considerable shrubbery which practically makes what is commonly called a “blind corner.”

The two cars collided in the intersection, about the middle of Seventh street- and towards the lakeside of Prytania street, where the uptown street car tracks are located. The left front side o.f plaintiff’s car struck the rear left side of defendant’s car and then both continued out Seventh street towards the river. Plaintiff’s car came to a stop with its front wheels on the uptown river sidewalk and defendant’s car came to rest on its right side with its wheels interlocked with the left side of plaintiff’s car, about 40 feet from the point of collision.

Plaintiff and the lady driving his car testified that as they approached the intersection his automobile was going about fifteen miles per hour; that the driver sounded the horn; and that she was driving on the right-hand side of Prytania street going uptown. Two disinterested witnesses for plaintiff conclusively established that his car was on the right side of the street because the skid marks of about four or five feet in length showed where it was when the brakes were first applied and also the marks of the front wheels on the pavement where they were pushed from an uptown course out towards the river on Seventh street and the wheel marks of the car to the point where it stopped on the sidewalk.

We have no- doubt but that plaintiff’s car was being operated at a very moderate rate of speed and that defendant’s car was being driven at an excessive rate of speed because the momentum of defendant’s car swerved plaintiff’s car from its course uptown towards the river and carried it a distance of forty feet. The momentum also caused defendant’s car to turn over and to continue on forty feet.

The driver of defendant’s ear and his witnesses testified that he did not stop before entering Prytania street but assert that he was going only five to eight miles per hour and had gotten to the middle of the street by the time he was struck, but the evidence of the disinterested witnesses shows that the point of collision was at or near the uptown car tracks on Prytania street. Defendant’s son, who was driving his car, testified ’as follows:

“Q. When you saw it, you were just about to enter the intersection?
“A. The front part of my car was in the intersection.
“Q.- Did you make any effort to stop?
“A. No, I knew X could beat it over.
"Q. Aside from the fact that you saw Mr. Hayward’s car about 150 feet away and you continued to travel about 30 or 35 miles an hour and proceeded to cross the intersection?
"A. I did.
“Q. Thinking you could beat it across?
“A. I knew I could get at least half way across.
“Q. You did not think of the other half?
“A. Well, there was half to pass me in the back. Does he need the whole street in the back?”

Ordinance No. 7490, C. C. S., article 2, see. 2, paragraph (a), provides:

“No motor vehicle shall turn into or cross any right of way street, as fixed in Article 1; Section 9, without first coming to a full stop, nor shall any motor vehicle turn into any other street from an intersecting street at a greater speed than five miles per hour.”

In Broderick v. Lane Cotton Mills, 1 La. App. 155, we said:

“The driver of an automobile who violates the traffic ordinance and in consequence thereof causes injury to another is liable in damages.”

In Bianchi v. Mussachi, 1 La. App. 291, we find the following:

“The decisions of this Court have been that it is necessary to enforce the traffic ordinances, and that the party who violates them must pay for the damages resulting from a collision.”
“When two vehicles approach an intersection at about the same time the one having the right of way is entitled to proceed and it is culpable negligence for the other to attempt to cross.
“The defendant * * * having stopped and looked should have seen the Cadillac in Prytania Street and to have allowed it to pass before crossing.”

Norwich Union Indemnity Co. v. Cohen, 1 La. App. 512.

In Belden v. Roberts, 3 La. App. 338, we said:

“When two vehicles approach an intersection at approximately the same time, the one having the right of way is entitled to proceed, and it is culpable negligence for the other to attempt to cross.
“The Traffic Ordinance requiring a vehicle approaching a right of way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.”

We find that the' sole and proximate cause of the accident was the negligence of defendant’s son in failing to stoip and in driving his car at an excessive rate of speed in violation of the above provisions of the traffic ordinance.

As to the quantum we are of the opinion that plaintiff has proven that the damages claimed resulted from the accident and that the cost of repairs are reasonable. Hendren v. Crescent City Seltzer Water Co., 1 La. App. 625.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, X, takes no part.


text:
    No. 11,146
    Orleans
    BACHE v. STOLTZ
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    George Piazza, of New Orleans, attorney for plaintiff, appellant.
    Jules A. Grasser, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for damages said to have. been caused by an alleged slander and trespass. The petition alleges that on Sunday morning, July 27, 1924, petitioner heard a noise in the alley of her home, and, upon investigation, found that the defendant had cut some branches from a peach tree, growing in her yard; that she inquired what he meant by doing so, whereupon defendant replied, “Because they were in my way and I will do- as I G- d-please”; that he then said, in the presence and hearing of others, “get inside you crooked thing, you are no good; I am watching you; wait—watch out and see what I am going to do with you”; that in the meantime the defendant’s wife, in his presence and without remonstrance or rebuke on his- part, said to plaintiff, “you are no good, you dirty crooked b-; you have autos parked in front of your house all night long; men going and coming in and out at all hours and you are at your ’phone all day long ringing up men to meet you and to make money”; that, upon petitioner calling defendant’s attention to what his wife had said, he rejoined, "My wife is right; both you and your mother are no good; you are both crooked; get in there and shut up.” The petition prays for damages of $1,000, the sum • of $500 for the trespass, and a like amount for slander.

The defendant answered, denying both the trespass, and slander, and averring “that the tree in question is on the boundary line of the lot of your defendant’s property; that the limbs extend over on the property of your defendant, as a result the shed of your defendant rotted, and further the leaves fall into the water pipes on defendant’s house and obstructs the drainage”; and, further, ‘‘defendant denies that he abused the plaintiff; that on the day in question the plaintiff did curse and abuse your defendant and defendant’s wife, plaintiff using language which your defendant does not care' to write in this answer, but will make proof thereof on the trial of this cause; that any disturbance or dispute that may have occurred was brought on by the plaintiff, arid any damage suffered .as a result of the conduct of the plaintiff was a damage to your defendant; that the trouble was provoked by the plaintiff.”

Before the trial of the case on the merits plaintiff abandoned her claim for trespass. There was judgment in favor of the defendant dismissing the suit, and plaintiff has appealed.

The record shows that plaintiff, a young unmarried woman, lives with her mother, who is almost blind; that she supported her, and that they had lived in the neighborhood since 1911; that the peach tree in question was located on plaintiff’s property, but branches of it extended over into the defendant’s yard and on his shed; that previously defendant had cut the branches of the tree, and on the morning in question was again cutting and removing them, when the plaintiff questioned his right to do so, with the result that an argument between them ensued.

The plaintiff, her mother, and Mrs. Melancon, a friend who lived with them, all testified as to the alleged slanderous statements. Mr. Spence, another witness for the plaintiff, testified that there was an argument between plaintiff and the defendant about the tree, but that he did not hear what defendant and his wife had said.

Defendant and his wife testified that he cut the branches of the tree and was removing them, when plaintiff remonstrated with him „ about it. They both deny the use of any slanderous language; the wife testifying:

“Q. Mrs. Stoltz, on the morning of July 27, 1924. was there any discussion or argument between your husband or yourself and Miss Bache?
“A. Yes, a little argument between her and I about the tree. My husband said nothing.”

Defendant also testified that, when the plaintiff questioned him about cutting the tree, he. simply informed her .that the branches were hanging over his property and destroying the roof of his shed, that he thought he had a right to cut the limbs, and that he said that in a very ordinary tone of voice.

The other eyewitness for defendant, H. W. Raecker, his son-in-law, testified that, while having breakfast on the morning in question, he heard defendant talking to plaintiff about “some weeds, that were hanging on his property, and Miss Bache came out and asked, him what he was doing and he said ‘cutting these weeds to protect my shed’ and she said she would enter suit against him and he said to go ahead and bring suit.” This witness denied hearing any slanderous remarks.

Defendant also produced a neighbor who lived in half the house with him, who testified that on the morning in question he did not hear any argument between plaintiff and defendant, but that his ability to hear would depend on where - he was in his house at the time. '

In addition to the others, defendant offered two character witnesses, who testified as to his reputation for being peaceful and quiet.

The testimony of the plaintiff and her witnesses is clear and consistent. On the other hand, the defendant’s testimony is inconsistent with his sworn, answer, which he personally signed. In his answer defendant accused the plaintiff of having provoked the argument and having called him such names that he did not think if proper to place them in his pleadings, yet in his testimony he stated that there was neither any loud talking nor any argument, and in no respect did he testify as to. the use by plaintiff of any improper language, which his answer alleges she employed. Again, his wife testified there was a little argument, whereas the sworn allegations of the defendant’s answer would indicate that a very violent disturbance and dispute took place! The testimony of defendant’s son-in-law is discredited by his statement that the argument took place over the removal of certain weeds, when, as a matter of fact, as all of the other witnesses agree, it was about a peach tree. Defendant’s other two witnesses testified that they did not hear anything. This evidence, being negative, cannot be accepted as prevailing over positive evidence. Von Eye v. Byrnes, 124 La. 769, 50 So. 708; McConnell v. Ory, 46 La. Ann. 564, 15 So. 424; Jones v. Texas & Pac. Ry. Co., 47 La. Ann. 383, 16 So. 937; Story v. Hope Ins. Co., 37 La. Ann. 254; Brigham v. Bussey, 26 La. Ann. 676, 678; Auld v. Walton, 12 La. Ann. 129; Hepburn v. Citizens Bank of La., 2 La. Ann. 1007, 46 Am. Dec. 564. We believe that the defendant and his eyewitnesses are discredited because their testi-' mony is inconsistent with the sworn allegations of his answer.

We are of the opinion that the plaintiff has proved her case by a preponderance of evidence and is entitled to recover. Smith v. Lyons, 142 La. 975, 77 So. 896, L. R. A. 1918E, 1; Tuyes v. Chambers, 144 La. 723, 81 So. 265; Vicknair v. Daily States Publishing Co., 153 La. 677, 96 So. 529.

As to the quantum, it appears that the plaintiff is a young unmarried woman of good reputation, employed in a clerical capacity and supporting her mother, who was almost blind. The slanderous language involved her chastity and morals, and was spoken in, the presence of her mother and others.

In the case of Fatjo v. Seidel, 109 La. 699, 33 So. 737, 738, the Supreme Court said:

“The judge a quo allowed $50 damages. If he believed the plaintiff, her son, and sister, this was not enough; if he did not believe them, it was too much. The fact that the slander was spoken in the presence of plaintiff’s - family, and not of strangers, seems to have been looked upon by the learned judge a quo in the light of a mitigation. In our opinion, it was the reverse; it was an aggravation. To charge a mother, in the presence of her 16 year old son with being a thief, has about i-t something shocking and . revolting that does not accompany the same act in the presence of mere strangers. * * *
“The judgment of' the lower court is amended so as to increase the amount allowed to $500, and, as thus increased, is affirmed.’’

We believe that the sum of $500 should be awarded as damages for the slander. Jackson v. Briede, 156 La. 573, 100 So. 722; McClure v. McMartin, 104 La. 496, 29 So. 227.

For the reasons assigned, the judgment appealed from is. annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of plaintiff, Miss Lottie Bache, and against the defendant, George Stoltz, in the full sum of $500, with legal interest from judicial demand, until paid, defendant to pay all costs of courts.


text:
    No. 13,578
    Orleans
    TARLETON-GASPARD v. MALOCHEE ET AL.
    (March 23, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    (June 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Milling, Godchaux, Saal & Milling (Robert E. Milling and Lawrence K. Benson, of counsel), of New Orleans, attorneys for plaintiff, appellee.
    Arthur A. Moreno and Gordon Boswell, of New Orleans, attorneys for Mr. and Mrs. Leo B. Bisso, defendants, appellants.
    Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for Henry J. Malochee, defendant, appellant.

      John D. Miller, of New Orleans, attorney for Buckmaster-Luck-Malochee, Inc., defendant, appellant.
   HIGGINS, J.

Mrs.- Lula Tarleton-Gaspard brings this suit against Henry J. Malochee, Mrs. Leo B. Bisso, Leo B. Bisso, and Buck-master-Luck-Malochee, Inc., in solido, claiming damages for personal injuries in the sum of $75,000, alleged to have resulted when Mr. Malochee, in attempting a avoid a collision with a Peerless seven-passenger sedan driven by Mrs. Bisso, drove bis Buick sedan upon the sidewalk of the intersection of St. Charles avenue and Lowerline street, this city, where the plaintiff was standing, and crushed her against an oak tree. The accident occurred on the uptown-lake sidewalk on October 19, 1929, about 7 o’clock p. m.

Plaintiff alleges that Mr. Malochee was at fault in operating his car at a rate of speed in excess of that permitted by article 2, section 1, subsection 1, paragraph. C, of the traffic ordinance of the city, No. 7490, C. C. S., hereinafter also referred to as the traffic ordinance, and also in that the brakes of the car were defective.

The petition also avers that the Buick car belongs to Buckmaster-Luck-Malochee, Inc., and -was being ■ operated by Mr. Malochee, its officer, agent, and employee, within the scope and during the course of his employment.

The allegation of negligence on the part of Mrs. Leo B. Bisso is that she violated article 1, section 1, subsection 7, paragraph D, of the traffic' ordinance, by proceeding across the neutral ground of St. Charles avenue without bringing her car to a stop and sounding her horn, so as to give approaching automobiles an opportunity to stop. *

The petition further charges that Leo B. Bisso is the owner of the car that his wife was driving, and that it was being operated as a family car, with his consent.

Plaintiff also alleges that the joint and concurrent negligence of the defendants was the proximate cause of her injuries, and that the case is one falling within the 1 doctrine of res ipsa loquitur.

i Mr. and Mrs. Bisso filed separate an- . swers, each denying liability, and averring that Mrs. Bisso brought the Peerless sedan to a full stop on the neutral ground while the Malochee car was three-quarters of a block away, and that she had completed the turn into St. Charles avenue ' and had advanced nearly a half block when the Buick car crashed into the plaintiff, and further setting up that the accident resulted from the negligence of Mr. Malochee, first, in driving at an excessive rate of speed; second, in driving too near to the neutral ground on the wrong side of the roadway; third, in failing to maintain a proper lookout; and, fourth, in operating the automobile with defective and inadequate brakes.

Mr. Malochee denied liability, and averred that St. Charles avenue was a right of way street under the provision's of article 1, subsection A, paragraph 7, of the traffic ordinance; that he was operating his car in a careful and lawful manner: that the accident was caused by the failure of Mrs. Bisso to observe the provisions of article 1, section 1, subsection 7, paragraph D, of the ordinance, which required her to stop, sound her horn, and give approaching traffic an opportunity to stop, before obtaining a right of way to leave the neutral ground and enter the lake side roadway of St. Charles avenue; that the proximate cause of the accident was the negligence and carelessness of Mrs. Bisso in suddenly leaving the neutral ground and entering the roadway directly in front of Mr. Malocheé’s car, which compelled him to sharply turn the Buick car to the right and run upon the sidewalk, injuring the plaintiff. Mr. Malochee further avers that he was using the car for his own personal purposes and not for any business of Buckmaster-Luck-Malochee, Inc.

Buckmaster-Luck-Malochee, Inc., admitted the ownership of the car, that Mr. Malochee, was its officer, but denied that he was using the car in the course of its business, and averred that he was upon an errand of his own, further defending on the ground that Mr. Malochee was without fault and that the accident was caused by Mrs. Bisso in suddenly driving from the neutral ground into the lakeside thoroughfare of St. Charles avenue, in violation of the city traffic ordinance.

The jury returned a verdict in favor of plaintiff and against all of the defendants in solido in the sum of $27,500. Motion for a new trial was overruled, and all of the defendants appealed.

The transcript is so voluminous that it is impracticable to narrate the evidence of the witnesses of the respective parties to the litigation.' We shall, therefore, give our appreciation of the facts as we gather them, after a careful review of the record.

We are impressed with the sincerity and good faith of the witnesses in their effort to tell truthfully what they saw, but there are the usual discrepancies in their testimony, due to the fact, we believe, that they observed the events leading up to accident and the accident from different positions and under different circumstances.

While the plaintiff alleged a cause of action under the doctrine of res ipsa loquitur, particularly as against Mr. Malochee and Buckmaster-Luck-Malochee, Inc. (Mercer et al. v. Rosenblath, 156 La. 250, 100 So. 414; Dotson v. La. Central Lumber Co., 144 La. 78, 80 So. 205; Lykiardopoulo v. N. O. & C. R. Lt. & Power Co. et al., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976; Scott v. Checker Cab Co., Inc., 12 La. App. 598, 126 So. 241; Olagues v. Pelican Ice Co., 11 Orl. App. 332; Hatcher v. Burlett et al., 11 La. App. 129, 119 So. 748; Bailey v. Fisher, 11 La. App. 187, 123 So. 166; Central Glass Co. v. Heiderich, 6 Orl. App. 336), in presenting her case in chief she produced evidence tending to show that St. Charles avenue is a boulevard with a neutral ground in the center, on which are located double street car tracks, and having paved roadways on each side, the riverside roadway being used by traffic going towards Canal street and the lakeside thoroughfare by vehicles going towards Carrollton avenue; that Lowerline street is paved and crosses St. Charles avenue at practically a right angle; that on the evening in question, while standing on the sidewalk on the uptown-lake corner of Lowerline street and St. Charles avenue, waiting for a friend who was expected to arrive on the St. Charles Belt street car going uptown, her attention was directed to an automobile moving uptown on the lakeside thoroughfare of St. Charles avenue, at an excessive -rate of speed; that, as this automobile approached the intersection of Lowerline street, the lights of Mrs. Bisso’s Peerless sedan, which was being driven on Lowerline street in the direction of the lake, flashed across the sidewalk into plaintiff’s eyes, as it turned to the left in order to proceed up St. Charles avenue; that about the same time the lights from the Malochee car practically converged with those of the Bisso car, and in the next instant the Malochee car had swerved from about the lower side of th.e intersection of Lowerline street diagonally across the intersection, mounting the six-inch curb of the sidewalk and crushing Mrs. Gaspard against a large oak tree situated several feet back on the sidewalk; that bystanders extricated ■ her and summoned an ambulance, in which she was taken to the Charity Hospital for treatment. j.

The plaintiff’s evidence further tended to show that Mr. Malochee was operating the Buick sedan at a rate of speed in excess of 25 miles an hour, which was the ■maximum speed allowed by the city traffic ordinance, and that the brakes of the Buick car were defective; and that, as far as the Bisso car was concerned, the driver of it had failed to observe the provisions of another section of the ordinance which required Mrs. Bisso to stop her car and blow her horn in order to warn approaching automobiles, thus affording them an opportunity to stop, before she could gain the right of way to leave the neutral ground to cross the street or turn into it. In short, the plaintiff made out a prima facie case of joint and concurrent negligence as against the defendants.

Mr. Malochee then offered, besides his own, the testimony of several witnesses, two of whom saw the accident, tending to' show that he was operating his ear at a rate of speed not in excess of thirty miles an hour; that he observed the Bisso car as it slowly entered and crossed the neutral ground of St. Charles avenue, when he was about a half block from it; that he did not retard his speed because he felt that the Bisso car would stop at any mo-^ ment, and that he was within 15 feet • of^ it when he realized it was not going to stop; that he first attempted to sway to the left, and then suddenly swerved to the right, in an attempt to avoid striking the Bisso car, which had just about completed the turn; that, as a result of the •sudden appearance of the Bisso car in front of him, it was necessary to pull sharply to the right, and, before he could stop or turn into Lowerline street, his car mounted the sidewalk and injured the plaintiff; that the Bisso car was solely at fault; and that the negligence of its driver was the sole proximate cause of plaintiff’s injuries.

The witnesses in behalf of Mr. and Mrs. Bisso, including themselves, consisted of several members of the family and one young lady friend, all of whom were passengers in the Peerless car, excepting Mr. Bisso. They testified that Mrs. Bisso had gone to the home of her parents, as it was her custom to drive them to a picture show; that as she came out Lowerline street, approaching St. Charles avenue, she slowed down, and, seeing there was not any traffic coming down St. Charles avenue, proceeded to cross its riverside thoroughfare and enter the neutral ground; that she then stopped, looked down St. Charles avenue and saw the lights of the nearest automobile about a half or three-quarters of a block away; that, believing that' she had time in which to make the turn, she proceeded into the lakeside roadway of St. Charles avenue, and, after having gone, as some of the witnesses estimate, a half block, and others, about sixty feet, up the avenue, they were attracted by a loud crash and screaming in the rear of them; that Mrs. Bisso pulled to the right, stopped, and backed to the scene of the crash, where she, her mother, father, and sister left the car and went to the scene of the accident; that, after the accident, Mrs. Bisso was so unnerved that she had to get her husband to drive the car home; that the Malochee car was proceeding at an excessive rate of speed; and that if it had been operated lawfully, Mrs. Bisso would have had ample time within which to make the • turn so as not to interfere with the Malochee car; and that Mr. Malochee was solely at fault in causing the accident.

It is clear that Mrs. Gaspard has a cause of action against either Mr. Malochee or Mrs. Bisso, or both of them, as she was standing on the sidewalk where she had a lawful-right to be, and therefore was without any fault whatsoever. Taking into consideration the evidence of both the .plaintiff and that of the Bissos, there is no doubt that it preponderates to . the effect that Mr. Malochee was operating his car at an excessive rate of speed, and was therefore violating the following provision of the traffic ordinance:

“Speed limits on the streets, avenues, highways and roadways in the City of New Orleans shall be as follows: * * *
“(c) Twenty-five Mile Zone. All right-of-way neutral ground streets, Spanish Port road and West End Shell Road.”

While it is true that under another provision of the traffic ordinance St. Charles avenue is a right of way street over all intersecting right of way streets, that fact does not absolve Mr. Malochee from using due care and caution to avoid injuring those who approach intersections from the less favored streets. His own testimony convinces us that he knew, or should have known, that the driver of the Bisso car was not observing the provisions of the traffic ordinance which required her to stop on the neutral ground and blow bor horn so as to give approaching vehicles an opportunity of stopping. When Mr. Malochee was fifty or sixty feet away from the Bisso car, it continued to cross the neutral ground and proceeded to turn into the roadway of St. Charles avenue. Yet he continued on his course and made no effort to slacken his speed, believing that the Bisso car would have time to straighten out to afford him an opportunity of passing it. His judgment of the distance proved to be erroneous. It was his own negligence and carelessness in operating his car at an excessive rate of speed,. and not placing it under proper control after observing the Bisso car was not going to stop, that contributed to the creation of a situation of imminent danger to the occupants of the Bisso car and himself, thereby necessitating his sudden swerving to the .right to avoid a collision with the Bisso car and resulting in his driving on the sidewalk and injuring plaintiff. We therefore find that he was at fault.

We next pass to a consideration of whether the driver of the Bisso car was at fault. Again we observe, taking the testimony of the witnesses of the plaintiff and Mr. Malochee into consideration, that the preponderance of the evidence tends to establish that the Bisso car merely slowed down as it crossed the neutral ground, but did not stop. It is admitted that the driver of the Bisso car did not sound the horn. Her counsel seek to excuse this fault on the ground that, as the Malochee car was one-half or three-quarters of a block away, it was unnecessary to sound the horn, but we are satisfied that, at the time the Bisso car left the neutral ground and attempted to turn into St. Charles avenue, the' Malochee car was not that far away, because, if it had been, there is no doubt that the Bisso car would have completed the turn and there would not have been any accident. We are of the opinion that it was the presence of the Bisso car in the (path of' the Malochee car that caused Mr. Malochee to suddenly swerve to the right and run upon the sidewalk. It is shown that the lakeside driveway of St. Charles avenue is 22 feet and 11 inches in width. The length of the Peerless sedan of Mrs. Bisso is 16 feet and- 8 inches, and its width 5 feet 10 inches, so that, in making the turn, it is obvious that the Bisso car would practically block the entire roadway. We are quite convinced that the driver of the Bisso car misjudged the distance between the Malochee car and her own, and she frankly states, in her testimony, that, after observing the distance of the Malochee car and reaching the conclusion that she had ample time in which to make the turn, she dismissed the Malochee car from her attention altogether, and that, if the Malochee car had been moving at a lawful rate of speed, there would have been time for her to turn. Having failed to observe the provisions of the traffic ordinance by coming to a complete stop and sounding her horn to give approaching automobiles an opportunity to stop, which.she was required to do in order to gain the right of way to enter St. Charles avenue, Mrs. Bisso was guilty of negligence. Not having the right of way, and seeing the other car approaching at an excessive rate of speed, she had no right to assume that it would stop to permit her to proceed, and thus driving out in front of an oncoming car under such circumstances was carelessness and negligence, which created a perilous situation, to avoid which the Malochee car ran upon the sidewalk where plaintiff was standing.

We have reached the conclusion that both drivers were guilty of carelessness and negligence, which jointly and concurrently was the proximate cause of the accident and injuries of the plaintiff, in this connection we quoce the following from the syllabus of Shield v. F. Johnson & Son Co. et al., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080:

“If the concurrent negligence of two or more persons combined results in an injury to a third person, the latter may recover from either or all. 29 Cyc. 487; Holzab v. Railroad Co., 38 La. Ann. 189, 58 Am. Rep. 179; 38 Cyc. 458, 483, 488.
“The doctrine of ‘the last clear chance’ has no application between two or more defendants as to one another, who are charged with concurring fault resulting in injury and damage to a plaintiff. 29 Cyc. 530; 36 Cyc. 1631; 38 Cyc. 456.”

See, also, Scott v. Checker Cab Co., supra; Buckner v. Powers, 12 La. App. 630, 125 So. 744; Dunbar v. Kaul, 12 La. App. 605, 126 So. 705; Vance v. Poree, 5 La. App. 109; Breaux v. Cangelosi, 10 La. App. 765, 123 So. 151; Fisse v. Toye Bros. Auto & Taxicab Co. et al., 14 La. App. 70, 127 So. 756; Barrett v. Collins, 11 La. Anp. 384, 123 So. 176.

Taking up next the question of the liability of Buckmaster-Luck-Malochee, Inc., whom the plaintiff seeks to. hold under the doctrine of “respondeat superior,” plaintiff contends that, having shown that the automobile was owned by BuckmasterLuck-Malochee, Inc., and that, Mr. Malochee was the president of the corporation, and, since this is a case coming under the doctrine of res ipsa loquitur, the burden is upon the corporation to show it is free from fault, citing May v. Yellow Cab Co., Inc., 164 La. 920, 114 So. 836, and Johnson v. Jim Brownlee, Inc., 13 La. App. 86, 127 So. 127.

The evidence in this connection is that Mr. Malochee had driven to the Jesuits’ Church, where he let his wife out, and proceeded up St. Charles avenue, in order to go to Eagle street to see a colored man, one of his domestic servants, who had failed to appear at his home for duty. It appears that this man was in no way connected with the affairs of BuckmasterLuck-Malochee, Inc., and was Mr. Malochee’s employee, and that he was on a mission of his own, which in no way concerned the corporation's interests. We are of the opinion that Mr. Malochee was not upon the company’s business at the time of the accident, but upon his private affairs, and that therefore the defendant Buckmaster-Luck-Malochee, Inc., is not liable. Griffin v. Motor Transit Co., 13 La. App. 151, 127 So. 438; Shearman and Red-field on Negligence (6th Ed.) sec. 147.

Eassing to the question of the liability • of Leo B. Bisso, we observe that the evidence shows that he was the owner of the Peerless sedan driven by his wife; that the car had been given to him by his father as a wedding present; that he had authorized his wife to use it as a family car; and that it was customary for Mrs. Bisso to drive her mother, father, and sister to the theater. Under the doctrine announced in the case of Paderas v. Stauffer, 10 La. App. 50, 119 So. 757, 120 So. 886, we are of the opinion that Mr. Bisso is liable, because his wife, under the circumstances, was his agent just the same as if she had 'been a family chauffeur. See, also, Durel v. Flach, 1 La. App. 758; Cohen v. Hill (Tex. Civ. App.) 286 S. W. 661; Plasch v. Fass, 144 Minn. 44, 174 N. W. 438, 10 A. L. R. 1446.

Finally, we consider the quantum of damages. The suit is for the sum of $75,-000. covering the following items, as alleged in paragraph 12 of the petition:

1. Permanent loss of left leg, making her a cripple for life; disfigurement; fracture of right ankle, leg and' bruises, including the wrenching and possible fracture of right knee__________________________-_________$50,000
2. Physical shock, torture and suffering sustained, and which will continue in the future................... 15,000
3. Mental shock, pain, anguish and ■ torment sustained, and which will continue in future---------------------- 10,000
$75,000

The jury allowed $27,500. Plaintiff has answered the appeal and asked that the award be increased to the full amount prayed for, and the defendants contend that the verdict is manifestly excessive and should be reduced to -a sum of not more than $7,500.

In the case of Rice v. Crescent City R. R. Co., 51 La. Ann. 108, 24 So. 791, 794, the Supreme Court said:

"It has never been the intention to fix by rule specific sums for different classes of injuries, nor for varying grades and duration of anguish and suffering. In this respect, each case is considered independently, on its merits, and on the state of facts peculiar to it, a due regard, however, being always had to the proper observance of a reasonable uniformity of jurisprudence on general lines.”

Following this same line of thought, this court in Le Blanc v. Checker Cab Co., 8 La. App. 472, said:

“The sums awarded in these cases are not compensatory and are not standardized. While it may be said that some uniformity should be attempted, so many differences exist in apparently similar cases that little uniformity of award exists or, in the nature of things can be accomplished.”

The record shows that plaintiff is a woman of 45 years of age, with a life expectancy of 24.54 years, under the American Experience Table of Mortality. She is married, and is the mother of several grown children. She has always enjoyed excellent health, was accustomed to performing all of her duties as a housewife, and enjoyed walking foj- exercise. We gather from the hospital report, medical testimony, and other evidence in the record, that Mrs. Gaspard was crushed by the front bumper of the Buick sedan against a large oak tree, terribly mashing and mutilating her left leg below the knee, The fibula (one of the bones of the lower leg) of the-right leg and the internal malleolus (the inside lower end of the tibia, or the other bone of the lower leg which forms the ankle) were fractured. Her right leg was also badly cut and bruised, which, together with the cast that was placed on her right leg, caused large ' ulcers, which were still visible at the time of the trial, seven months after the accident. Her right knee was also severely wrenched, causing large knots of fibrous substance, which were also present at the time of the trial. Plaintiff’s left arm and wrist were severely wrenched, necessitating their being placed in splints, and causing them to be useless until January, 1930; their function being slowly regained through the application of heat. Her body and limbs were otherwise painfully injured because of multiple contusions and bruises.

The accident happened on October 19th, about 7 o’clock (p. m., and within an hour she was removed to Charity Hospital, where her left leg was removed about five inches below the knee by a Guillotine operation. It was necessary to leave the wound open in order to pull the flesh and skin down, over the end of the stump to cause proper healing. The weights used for this purpose were suspended by pulleys and remained in that position for about 54 days. The other leg was in a plaster cast, which was from time to time removed and replaced, as well as the splints on her left arm. The patient was in “an extreme state of shock,” and it was necessary to give her transfusions on account of loss of blood. She entered the hospital on October 19, 1929, and was discharged on January 20, 1930, but was confined, at first, to her bed at home, and thereafter partially confined to her bed. Even until the time of the trial she was required to use crutches with the assistance of some one to support her while using them.

When the cause was tried in the last week of May, 1930, if was shown that the break in the fibula of plaintiff’s right leg had healed, but that the break in the internal malleolus had not, due to the interposition of soft parts of flesh between the bones. This appears to have caused plaintiff to have a traumatic flat foot and a shortening of the tendon Achilles, causing her to throw her foot out and limiting the upward movement of her foot. The duration of this condition is problematical.

Plaintiff was conscious during all of the extreme suffering and pain, which was of a most severe nature, and which she bore with such commendable fortitude and courage as to elicit the expressed admiration of all parties concerned. • She is crippled and disfigured for life.

In the light of the jurisprudence of this state, we have concluded that the award of $27,500 is excessive, and that the verdict should be reduced to the sum of $15,000. Choppin v. N. O. & Carrollton R. R. Co., 17 La. Ann. 19; Lee v. Powell Bros. & Sanders Co., 126 La. 51, 52 So. 214; Nelson v. Vicksburg, S. & P. Ry. Co., 141 La. 475, 75 So. 212; Leininger v. N. O. Ry. & Light Co., 150 La. 1089, 91 So. 521; Shally v. N. O. Public Service et al., 1 La. App. 770; Babin v. Sewerage & Water Board, 2 La. App. 517.

For the reasons assigned, it is ordered that the judgment appealed from, insofar as it condemns Buckmaster-Luck-Malochee, Inc., be reversed, and it is now ordered that there be judgment in favor of Buck-master-Luck-Malochee, Inc., defendant, and against Mrs. Lula Tarleton-Gaspard, plaintiff, dismissing plaintiff’s suit at her cost.

It is further ordered that the judgment in favor of Mrs. Lula Tarleton-Gaspard, plaintiff, and against Henry J. Malochee, Leo B. Bisso, and Mrs. Leo B. Bisso, defendants, be amended by reducing the amount awarded from $27,500 to the sum of $15,000, and, as thus amended, it is affirmed.


author: JANVIER, J.

text:
    No. 13,559
    Orleans
    VILLEMEUR v. WOODWARD ET AL.
    (April 13, 1931. Opinion and Decree.)
    (May 11, 1931. Rehearing Refused.)
    Theo. Cotonio and Theo. Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Warren V. Miller, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Plaintiff alleges that he was solicited by Lally & Lally, a real estate brokerage firm, to ’ purchase certain real estate to which he was attracted and that he deposited with the saicl defendants the sum of $1,000 and signed what he believed was “a complete agreement of sale,” which was presented to him by the said real estate agents.

He avers that the said offer is null and void and of no effect, and that it was never accepted by Charles E. Woodward, the owner of the property, and that he is entitled to the return of the said deposit.

Defendants deny that plaintiff thought he was signing a complete agreement of sale, and aver that" he knew that the agreement was prepared in advance of negotiation with the owner; that, at the suggestion of plaintiff, his name was not to be disclosed to, the said owner; that the said owner did accept the said offer; that the said offer is a valid agreement; and that, if it contained a potestative condition in that the offer contained the condition “balance payable homestead,” that infirmity was cured by plaintiff himself when he applied for a loan to the Union Homestead Association in this city and when that ' association acted favorably on his application.

When this matter first came before us, we felt that there was involved an attack on the validity of the agreement of sale, and, as the object of that agreement was the sale of real estate for the price of $10,000, we were of the opinion that the matter involved exceeded the limit of our jurisdiction, and we therefore transferred the appeal to the Supreme Court. Villemeur v. Woodward et al., 14 La. App. 597, 130 So. 366. That court, however, came to the conclusion that there was not involved —except, possibly, incidentally—the question of the validity of the agreement of sale and therefore sent the matter back to us, holding that the petition presented only the question of the right of plaintiff to the return of the deposit of $1,000. Villemeur v. Woodward et al. (La. Sup.) 132 So. 361.

We find in the record a copy of an offer signed by plaintiff, and it appears from that document that the space provided for the signature of the owner remains blank.

In oral argument we were told by counsel for defendants that the acceptance of the offer appeared in, _ another document and that he was prevented by the ruling of the trial court from offering in evidence the other document. He complains- of this ruling and maintains that, if he had been afforded the right of , introducing in evidence the other document to which he refers, it would have shown conclusively the acceptance by the owner of the offer made by plaintiff. It is important that we analyze carefully the ruling complained of.

When counsel for plaintiff offered to prove the allegations of his petition, counsel for defendants admitted that plaintiff had made the deposit with defendants and that plaintiff had signed the offer referred to in his .petition, and admitted that the copy of the said offer, which was produced by plaintiff’s counsel, was a true and correct copy. That document, as we have stated, did not contain the acceptance signed by the owner, and therefore, if the matter depended entirely upon that document; no other conclusion could be reached than that the owner’s acceptance had not been obtained. Counsel for defendants thereupon called upon plaintiff to testify as though under cross-examination in accordance with Act No. 126 of 1908. Immediately after plaintiff took the stand and before giving any testimony, counsel for plaintiff offered the following objection :

“We object to any and all parol evidence sought to be introduced in this case, either to change, vary, contradict, add to, or, in any manner modify the contract to offer to .purchase signed by the plaintiff herein and already offered in evidence.”

While the record does not conclusively show it, we infer that the objection was sustained, and we find in the record no evidence of any kind, - either oral or .written, on behalf of defendants.

If, as counsel for defendants suggest orally, the owner of the property had, in another document, executed an acceptance of the offer to purchase, the -objection which we have quoted, assuming it to have been sustained, would not have excluded it, since that objection refers only to parol evidence. It was counsel’s duty and privilege to introduce in evidence such written acceptance as he may have had, but as we have stated, we find no such document in the record, and, in the absence of such document, there does not appear any acceptance of plaintiff’s offer.

Of course, it i's evident that the real bone of contention is the commission to which defendants claim they are entitled for their services in closing the contract. Since, however, ’ the record does not show that they closed the negotiation by obtaining the signature of the owner, it is manifest that they are entitled to no comnnV sion. There is no controversy with regard to any interest of the owner, Woodward, in or to any part of the deposit.

It is unnecessary to discuss the question presented by the other contention, that the offer, even if accepted by the owner, wopld have had no effect, since it contained a potestative condition.

Thus, since Woodward has no claim, and since defendants have earned no part of the deposit as their commission, it is evident that plaintiff should recover the said deposit.

The lower court rendered judgment in favor of plaintiff ordering the return of the deposit.

The judgment appealed from is affirmed.


text:
    No. 13,571
    Orleans
    INTERNATIONAL ALKALI CO. v. NEW ORLEANS & N. E. R. R. CO.
    (April 27, 1931. Opinion and Decree.)

      Chester A. Peyronnin, of New Orleans, attorney for plaintiff, appellee.
    Monroe & Lemann and Watts K. Leverich, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff sues the defendant, an intermediate carrier between Meridian, Miss., and New Orleans, La., to recover the sum of $151.80 for overcharges claimed to have been paid by him to defendant railroad company.

The petition alleges that Charles R. Kincaide is the solej owner of and doing business under the name of International Alkali Company, and that during the months of August, September, October, and November, 1924, he sold and delivered to E-Z Opener Bag Company various carloads of lime in bulk; that defendant was engaged to transport these shipments from Cumberland, Ala., to Braithwaite, La.; and that the carrier overcharged him the various amounts set forth in the itemized statement annexed to and made part of the petition.

The defendant denied liability, averring that the freight charges were collected by it from the Louisiana Southern Railway Company, the delivering carrier, and that the amounts collected were the lawful published tariff charges in effect on the shipments at the time of their movement.'

There was judgment in favor of plaintiff for the sum of $52.36 and as to the balance of the claim plaintiff was non-suited. The defendant has appealed.

The only evidence introduced by the plaintiff were his own depositions and certain exhibits referre'd to by him in his testimony, consisting of two letters from -the secretary of the Interstate Commerce Commission. By these letters the plaintiff sought to prove that the proper freight charge, according to the lawful published tariff, was $2.70 per ton, covering bulk shipments of lime in carload lots, whereas the railroad company had charged him $3.70. The" attorney for the defendant company objected to the testimony of the plaintiff, as to rates, oh the ground that it was hearsay; as to the letters and memoranda purporting to come from the Interstate Commerce Commission on the ground that they were immaterial and irrelevant and res inter alios acta, and further on the ground that they were not sworn to and sealed by the secretary of the Interstate Commerce Commission, as required by law, that they were ex parte statements and hearsay, concerning which the defendant did not have any opportunity for cross examination, and that they were mere statements of the opinion of a third person as to the interpretation of the provisions of thé tariff.

The U. S. Code, Title 49, “Transportation,” section 16, paragraph 13, provides as follows:

“The copies of schedules and classifications and tariffs of rates, fares and charges, and of all contracts, agreements, and arrangement between common carriers filed with the commission as herein provided, and .the statistics, tables, and figures contained in the annual or other reports of carriers made to the commission as required under the provisions of this chapter shall be preserved as public records in the custody of the secretary of the commission, and shall be received as prima facie evidence of what they purport to be for the purpose of investigations by the commission and in all judicial proceedings; and copies of and extracts from any of said schedules, classifications, tariffs, contracts, agreements, arrangements, or reports, made public records as aforesaid, certified by the secretary, under the commission’s seal, shall be received in evidence with like effect as the originals.”

In the case of Shelton v. St. L. & S. F. Ry. Co., 131 Mo. App. 560, 110 S. W. 627, 630, with reference to this subject-matter, the court held:

“Defendant's schedule of rates on file with the Commission is a record required by law, and is, by express statute, to be preserved as a public record... * * * What it contains as to rates, or otherwise, can be exemplified only by a copy thereof, or at least copies of such portions as are pertinent, duly certified by the secretary of the Commission, who is their lawful custodian.”

See, also, St. Louis S. W. Ry. Co. v. Rivers, 15 La. App. 167, 130 So. 641.

It would appear to us that this provision, of the Code was adopted for the purpose of furnishing a method of proof of tariffs lawfully filed with the Interstate Commerce Commission, as the charges provided in these tariffs .are the only lawful rates which the shipper shall be required to pay and the railroad permitted to coilect. Under the rules of evidence the best evidence of the lawful published tariff rates would be the original tariffs filed with the Interstate Commerce Commission. But it would be impossible to offer these originals in evidence and, hem,e, the. law provides, that certified copies. by the secretary of the commission, under its seal, shall be received in evidence with like effect as the originals. The plaintiff made no effort to produce such certified copies of the applicable tariffs. We believe that these copies would have been furnished upon request tiy the secretary of the commission, but apparently no attempt was. made to obtain them. Timely objection was made to the offer of this evidence by the defendant’s counsel, but our learned brother below ruled- that the objection shottld go to the effect. We are of the opinion that the objection was proper and should have been sustained.

Without the tariffs before the court it was impossible to attempt an interpretation of their provisions. Even if the secretary’s. letters were admissible in evidence, his opinion, or interpretation, would not have been binding upon us, for the courts are not bound even by the construction placed upon the tariffs by the Interstate Commerce Commission. Hohenberg v. L. & N. R. Co., 46 F. (2d) page 952 (5th Circuit Court of Appeal); Great Northern Ry. Co. v. Merchants’ Elevator Co., 259 U. S. 285, 42 S. Ct. 477, 66 L. Ed. 943, 946; Texas & Pac. Ry. Co. v. Leatherwood, 250 U. S. 478, 480, 39 S. Ct. 517, 63 L. Ed. 1096, 1098.

The elimination of this evidence leaves .the record in such a condition that we are forced to the conclusion that the plaintiff has failed to prove his case and, for the reasons assigned,

The judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of defendant and against plaintiff, dismissing plaintiff’s . suit as in case of non-suit, at plaintiff’s cost.


text:
    No. 13,514
    Orleans
    MONROE v. EAGER
    (January 5, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Jas. G. Schillin, of New Orleans, attorney for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

.On the night before Mardi Gras in the year 1929 plaintiff received injuries as the result of being struck and knocked down by an automobile owned and occupied by defendant. The negligence charged is that the automobile was being operated at a speed greater than was reasonable under the circumstances, and that the driver thereof, a young friend of defendant, was not keeping a proper lookout ahead.

Defendant contends that the driver of her car was not negligent either in the matter of speed or in the matter of keeping a proper lookout, and, in the alternative, aversi that, if there was any negligence in either particular above referred to, such was not the proximate cause of the accident, but that such proximate cause was the contributory negligence of the plaintiff, who stepped into the path of the approaching automobile without looking and after there was no longer any opportunity for the driver thereof to avoid striking him.

The evidence shows that the automobile driven by the young friend of defendant and occupied by her and other friends and relatives was on its way downtown, so that the occupants, might arrive at a spot convenient to view the Proteus parade, that at some street near Louisiana avenue traffic was diverted from St. Charles avenue to Prytania street, and that the automobile of defendant thus turned from St. Charles avenue, proceeded over to Prytania street,, and was on its way down that street. In front of it and following it were numerous other automobiles. When it reached a point near the lower side of Third street, the collision occurred. Plaintiff had been walking on Third street from Coliseum street towards St. Charles avenue for the purpose of taking his stand along the route of '.the Proteus parade, so that he might view it. Apparently he had stepped from the .sidewalk into Prytania street, and, with quite a number of other persons, was waiting for a sufficient break in the traffic to permit of crossing that street from the river side, on which he was standing, to the lake side. Believing that a sufficient break had occurred, he stepped into the line of traffic, but was immediately hit by defendant’s car.

We find that no question • of law is involved, and that the first question presented for determination is whether or not plaintiff himself was negligent, and, if so, whether or not there was opportunity, after his negligence had lost its active effect, for defendant’s car to avoid him, because, if he was negligent and if defendant’s car could not avoid him, then his own carelessness would prevent his recovery, even if there was negligence in the driver of the car.

In spite of the finding of the trial judge in favor of plaintiff, we have reached the conclusion that plaintiff’s own negligence bars his recovery. It is. very evident that ■the automobile was proceeding slowly and was only one of numerous cars, each of which was very close to the one in front of it. In this situation there was no opportunity for defendant’s car to avoid striking plaintiff when he stepped in front of it.

The statement of the driver that he did not see plaintiff until he was struck should be read in connection with his other statements, which lead to the view that what he intended to say was that he noticed a large crowd of persons waiting to cross, but he paid no particular attention to plaintiff, who, from this crowd of persons, stepped suddenly in front of the automobile. We find no negligence in the driver of defendant’s car, but that there was negligence chargeable to plaintiff himself.

The judgment appealed from is reversed, and plaintiff’s suit is dismissed at his cost.