author: MOUTON, J. MOUTON, J.

text:
    No. 427
    First Circuit
    KENNEDY v. OPDENWEYER
    (April 13, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

A collision occurred, between a Lincoln sedan and a Ford car on April 9, 1928, in the afternoon about 1:30, on the Jefferson Highway south of. the Baton Rouge Country Club, a few miles south of the city of Baton Rouge.

The defendant was driving the sedan and Zimmie Kennedy, who was killed in the accident, was driving the Ford car.

There is a curve of about 8 degrees in the Jefferson Highway where the accident happened, but the road runs practically east and west. Defendant was going from the city of Baton Rouge and was traveling eastward, from which direction Kennedy was coming. The autos were therefore moving in opposite directions at the time of the collision.

Plaintiff brought this suit against defendant for $20,409.75, for herself individually and for the use of a minor child. The case was tried by a jury, which rendered a unanimous verdict in favor of plaintiff for the full amount claimed, and after the refusal of an application for a new trial, was confirmed by a judgment of the district judge.

Defendant appeals.

The curve where the accident occurred is 677 feet long, is not abrupt and offers no obstruction whatsoever to the view of travelers in either direction on that road which is a paved highway.

There is a white line about 4 inches wide which runs near the center of the pavement, being 10 feet from the north edge of the pavement and 13.6 feet from its south edge. There is a dirt shoulder on both sides of the pavement, measuring 6 feet on each side. The road, including the dirt shoulders, is therefore at this point a fraction over 35 feet wide.'

As there was no obstruction on this highway in which there is a slight deflection from a straight line, it is therefore obvious that defendant and Kennedy saw each other’s car at a safe distance from the point where the impact took place. In his original answer defendant alleged that as he was rounding the curve he noticed a Ford car which was approaching on the same side he was traveling, at a distance from his auto of approximately 100 or 150 feet.

A few minutes before the trial, the record shows that defendant, over the protest of plaintiff’s counsel, filed an amendment to his answer, changing his figures from feet to yards, in reference to the distance he first saw the approaching car. This change in the answer had reference to the proof, in no way altered the substance of the demand, and was entirely permissible, as held below. C. P. 419, 420. Counsel for plaintiff, if we appreciate his position correctly, does not contend that the amendment was improperly allowed, but claims that the change obtained, as to the distance at which defendant subsequently claimed to have first seen the Ford car, militates severely against his veracity, as a witness in the case. The defendant stated frankly in his testimony that he had made a mistake in his original answer and merely desired to make the correction so that his statement might conform to the true state of facts. There is nothing reprehensible with respect to this explanation and which can in any way affect the credibility of defendant.

Plaintiff’s counsel claims that at the time of the collision Kennedy was driving on the north side of the white line which runs near the center of the pavement, and was therefore on his right-hand side. In support of this contention he depends largely on the testimony of Will Norder.

This witness says that Kennedy was driving ahead of him on the highway at a distance of about 150 yards; that he was not paying much attention to Kennedy; that about the distance above stated he turned his car in Essen lane, a driveway which runs from the south into the highway; that Kennedy was back of him, and that he did not see the collision, but heard the crash. Evidently, Kennedy could have crossed the white line on the side defendant’s car was, and which Norder could not have seen situated as he was. It is obvious if Kennedy had been driving to the north of the white line and had continued in that direction when the cars reached the same point, the autos would have safely [passed each other, and a collision would have been a physical impossibility. The situation then existing there accounts for the allegation in plaintiff’s petition wherein she says in referring to defendant that he suddenly and without warning crossed the road over to his (Opdenweyer’s) left-hand side, and drove “head-on” into the Ford touring car. The ! proposition upon which she bases her contention for recovery is therefore that there was a head-on collision between the two cars.

Kennedy died the same pight after the accident from the injuries he suffered as a result of the collision. The only eyewitnesses to the accident are the defendant and his wife, Mrs. Opdenweyer, who was sitting at the time on the front seat of the sedan next to her husband who was driving.

Defendant says he was driving on the south side of the road going east, which the record shows was on his right side. His wife makes the same statement. Mrs. McHardy, an elderly lady, lives near the highway on the south side of the white line, near enough to see the curve in the roadway. She saw when defendant’s car passed her home, and says it was on the driver’s right side. The fact is that she had gone inside after seeing the car, then heard the crash, went back on her gallery, but did not see the collision. According to Mrs. McHardy, it is therefore true that when defendant entered the curve he was traveling on his right side of the; road. The very allegation of plaintiff’s petition, that defendant “suddenly and without warning crossed the road to his, Opdenweyer’s left hand side,” makes it evident that defendant was driving on his right side, otherwise he could not have crossed to his (defendant’s) “left-hand side.’’

Defendant says that his wife saw Kennedy first and told him to be careful, as a man was coming on the wrong side of the road. Defendant admits he saw Kennedy, that he kept on driving on the south side, and did not blow his horn, slow down his auto, or apply his brakes. He was then traveling, he says, at 30 miles an hour which he saw registered on the speedometer; that Kennedy was coming at about the same rate of speed. He explains that he did not slow down or attempt to give any warning, as he expected that Kennedy would veer his car from the south side of the road to the north side of the white line which was Kennedy’s right side. He explains that Kennedy was so much on defendant’s side of the white line that defendant’s passage way was blocked. He says he saw that in order to pass Kennedy he would have to get off on the dirt road, which he was going to do, when suddenly Kennedy veered to the south side, shutting off his pathway. If he had continued in the same direction, a head-on collision would have been inevitable, and, being thus imperiled by this emergency, for the purpose of avoiding the impending head-on collision, he says he suddenly swerved his car to his left side or to the north of the white line, and, as he did so, the Ford car turned in the same direction and at a point a little to the south of the white line, the left front wheel of the Ford car struck the right front or side of defendant’s car.

The version given by Mrs. Opdenweyer of the occurrence is in this particular, and on the other important features of the case, practically the same as that testified to by her husband. She was riding on the front seat with her husband and was in a position to see what transpired just before and at the time of the impact. It was shown that the right wheels of the Ford which, after the collision, laid sidewise on the roadway, were in the air.

Counsel for plaintiff questioned Mrs. Opdenweyer in reference to the position of these car wheels. She stated she was under considerable excitement after this deplorable accident, that she was looking with solicitude at the unfortunate victim whom her husband was trying to extricate from the wreck, and that she could not remember in what position the wheels of the Ford car were at that time. Because of her inability to remember that fact, counsel seems to infer that her testimony as to what transpired before and at the time of the collision is unreliable. In an emergency of that character, what occurred prior to the accident would, in our opinion, remain indelibly impressed on the mind of one placed in Mrs. Opdenweyer’s position, but facts in reference to the position of a car and much less its wheels, after the collision, would naturally be passed unnoticed in a moment of distress and excitement following such an occurrence.

Defendant testifies that after the Ford car had run into the sedan on its right side, the sedan continued on its course and ran into a ditch along the north side of the road. His wife’s testimony is to the same effect. The sedan was seen there, rammed against the embankment of that ditch, by several witnesses who went to the scene soon after the crash. The proof is conflicting in reference to the spot or exact location of the Ford after the accident. It is difficult to fix the exact spot where it was at that time, whether on the white line, south or north of it. The preponderance of the evidence shows however that its rear wheels were on the white line with the major part of the body south of it, and that it. was facing a southwesterly direction, while the Lincoln was standing on the side of the ditch on the north side of the highway, and opposite to the Ford. The proof is clear that the injury to the Ford was on its left side, and the damage to the sedan was on its right side.

Tom Dutton, one of the witnesses, testifies he was at the scene soon after the accident, and that the Ford car was dented on the left side of the radiator.

The exhibit made to this court shows that the radiator was dented on the side to which Dutton testified. The facts showing the damage on the right side of the sedan and on the left side of the Ford, which was coming from the east, that the Ford which was a much lighter car was turned around to the southwest, and that the sedan, the much heavier car, proceeded to the northeast across the road to the ditch on the other side where it stopped opposite the Ford, indicate quite clearly that a glancing blow occurred between the two cars just as defendant was as explained by him and his wife, endeavoring to cut across the road to avoid a head-on collision with Kennedy’s car that had closed his passage to the south.

The sedan, as shown by the record, weighs 5,000 pounds. There is no proof how much the weight of the Ford was, but we can take judicial notice of the fact that it could not have weighed over 2,000 pounds. It is true that the left wheel of the Ford was broken, that the radiator was badly dented, and that it was severely battered, and turned on its side, .with its right wheels in the air. If there had been a head-qn collision, however, between these cars which were traveling in opposite directions at a speed each of 30 miles an hour, there would have been such a crash that the damage would not have been confined to the right side of the sedan and the left side of the Ford. The right side of the Ford, and the left side of the sedan would unquestionably have shown the effects of the impact. The chances are that the Ford would have been completely wrecked on the right as well as on the left side of the hood, radiator, wheels, or other parts of the car, with similar damages, perhaps of a less severe character, to the sedan, the much heavier car. Nor is there any probability that the sedan would have been deflected from its course in a head-on collision and have proceeded on a 45-degree angle, as appears from the evidence, across the pavement 10 feet from the white line and over 6 feet across the dirt shoulder to the embankment of the ditch on the north side of the highway. It is impossible to believe that a head-on collision could have had such results, but which are easily explained as being brought about by the two cars being veered to the north running diagonally and meeting in the attempt made to avoid a head-on collision. This explanation is therefore in harmony with the version of the occurrence given by defendant and Mrs. Opdenweyer.

There are, however, other witnesses in the case, who immediately, and some later, but soon after the collision, visited the scene, and who testify to certain facts which are strongly corroborative of the version given by defendant and his wife, and which are in keeping with the explanation revealed by the physical results of the accident to which we have above referred.

The accident, it is alleged by plaintiff, occurred about 1:15 p. m. Doyle Martin reached the scene a few minutes later; he says, between 1:30, 1:45 p. m. He testifies that he traced the tracks of the Lincoln car from the outside of the pavement on the south side of the road across the road to where the Lincoln car had stopped on the brink of the hill, on the north side of the highway. He says he saw big tracks across the road which ran at an angle of about 45 degrees and where was left a deposit of fresh earth and oyster shells. He traced the tracks from the dirt shoulder on the south side of the road which he followed to the rear casing of the Lincoln car. The proof shows it had been raining. No doubt, the dirt on the south side shoulder of the road from where Martin had traced the tracks had been picked up by the Lincoln and had stuck to the tires and had been deposited across the pavement, as was explained by Martin. This witness is not a relative of the defendant, and has no interest in the outcome of this case, and is entirely disinterested as appears from the proof. He was, at that time, working for the highway commission, which accounts for the close observation he gave to what had happened.

Dr. Pipes was at the Heidelberg Hotel in Baton Rouge when the collision occurred. Mr. Dutton, son-in-law of Mrs. Opdenweyer, was immediately notified by phone of the accident. As a physician was called for, Mr. Dutton took the doctor immediately to the place of the wreck.

Dr. Pipes says there was a mud track diagonally across the road from near the Lincoln car. There was another track, not however quite, so distinct, “leading from the south side of the road diagonally across the road to the Lincoln wheels.” It really began, he says, a little off the concrete, as though one wheel had gotten off the concrete, and had come back on the road, “and then had gone across.” Dr. Pipes is also an entirely disinterested witness.

Tom Dutton, son-in-law of the defendant, and his wife testify practically to the same facts in reference to the tracks that led to the Lincoln car.

Plaintiff’s counsel brought two or three witnesses to show that due to the effects of the rain on the pavement the tires of the Lincoln car could have left no marks across the road, visible to the eye. These witnesses said they did not Believe such tracks would have remained on the pavement, but were not positive that such could not have been the case. Even if in their opinion no tracks would have remained, testimony of that character cannot overcome the evidence of the witnesses who testified positively to the existence of these tracks, and to the direction in which they ran across the road.

In his testimony defendant says, to be certain, he was driving on the “sure side,” that he might have been a few inches off the curb.

Mrs. Opdenweyer says, in order to allow the other car passage way, defendant pulled as far to the right as he could, and she thinks he went a little over the curb. She was on the right side, and was therefore in a position to see that the car had gone beyond the curb.

The fact that the other witnesses above named testify that the tracks of the Lincoln car had been traced by them beyond the curb on the south side of the road into the dirt shoulder, convinces us that defendant and his wife gave a correct version of what defendant had done to avoid the accident. When defendant saw that a head-on collision was inevitable, if he continued in his course, he dashed across the road to his left diagonally and left the imprints of the tires of his car across the road leading to the ditch on the other side, where they were traced by the witnesses soon after the accident.

Counsel for plaintiff says that defendant and his wife made statements at their examination before the coroner’s inquest at variance with what they said on the trial. On the most vital issue of fact involved herein, defendant said at the inquest that as the Ford was coming on his (defendant’s) right side of the road, it was suddenly veered to the defendant’s left as he was trying to pass it; that he tried to pass him at his left which was the only thing he could do, and that the impact occurred near or on the white line. Mrs. Opdenweyer confirmed that statement, and in which we find no substancial variance from what these parties testified to during the trial. Nor are there any discrepancies as to the other facts testified to by them at the coroner’s inquest.

From the foregoing testimony, facts, and circumstances it is therefore clear that defendant was forced by Kennedy who was driving on the wrong side of the highway to suddenly veer his sedan to his left and to dash across the road to avoid a head-on collision.

Counsel for .plaintiff refers us to Goldsby vs. Lowrey, 6 La. App. 450, where he quotes from the decision to the effect that, when a party driving an auto sees another more than 100 feet away coming on the wrong side of the road, his duty is to stop within 10 or 20 feet of the other car, otherwise the party is guilty of gross negligence. If he had copied further from that decision, he would have seen that the court said it preferred not to decide the case on that point. If, however, the court intended to so hold, we must say that we cannot agree to that doctrine. The law of the road requires each to drive on his right side. Laymen all know this rule, and cannot plead ignorance of it. Defendant had therefore the right to rely on that rule in this case and to expect that Kennedy would have turned to his side of the road, and was not in duty bound to stop his car. The gross negligence was on the part of Kennedy and not on defendant who was forced by the fault of the former to veer his course to the left as before explained.

Another contention of counsel for plaintiff is that when the collision happened defendant’s car was on the north side of the white line and therefore on Kennedy’s side. The proof does not support this contention, as the preponderance of the evidence is that it occurred on the white line or rather on the south side thereof. He contends that, as defendant was on the wrong side at that time, the presumption is that he was negligent, unless “there were justifiable circumstances which excused his conduct,” citing Schick vs. Jenevein, 145 La. 334, 82 So. 360, in support of that doctrine. The facts here show conclusively that, if the collision occurred on Kennedy’s side of the road, defendant was forced there to avoid a, head-on collision by the gross negligence of Kennedy, and that the conduct of defendant was entirely justifiable and excusable under the circumstances.

In Williams vs. Garcia, 2 La. App. 56, where it appeared if both parties had continued on their course a head-on collision would have inevitably resulted, Garcia swerved his car to his left towards the center of the street, and, as he did that, plaintiff for the same reason swerved to his right; plaintiff’s car struck defendant’s car on the right side near the door, and both cars were driven near the sidewalk. This conclusion, said the court, is supported by the relative position of the cars after the collision.

Here, this conclusion is supported not only by the relative position of the cars after the accident, but by the evidence of Mr. and Mrs. Opdenweyer and by the markings of the tires across the roadway.

The court in the case cited above, said, “It is true that if defendant had not swerved to the left that the collision would not have occurred,” but, says the court in conclusion, “the swerving was brought about by the fault of the plaintiff.”

Likewise it can be said here that the swerving by defendant was brought about by Kennedy, plaintiff’s deceased husband. The defendant here was confronted with an emergency, was suddenly placed in a perilous situation, and, to avoid the impending danger, with little time to think or reflect, dashed across the road, and in which it must be held that he pursued the proper course and exercised ordinary care under the circumstances. See, also, Smith vs. Interurban Transp. Co., 5 La. Aipp. 704.

Plaintiff invokes also the rule of the last clear chance, which it is contended defendant failed to observe. This rule has no application in this case, but, if it can possibly he applied, it can be said that, when defendant veered to his left, he offered Kennedy the opportunity to pass him on the south side of the road, arid thus take advantage of the last clear chance to escape the impact. Kennedy, instead of doing this, veered simultaneously to his right and ran into defendant’s car.

Even if it be conceded that defendant was at fault in darting across the road, Kennedy was also unquestionably primarily at fault in coming towards defendant on the wrong side of the road and thus compelling him to swerve to his left, which brought about the collision in the middle or near the center of the highway. Taking that view of the case, which is not supported by the record, as defendant was at no time at fault, still, plaintiff could not recover, nor could defendant, if he had demanded damages, as both parties would in such a case be held at fault, where, under the well-settled rule in such cases, neither party can recover.

We have given the consideration due to the unanimous verdict of the jury and the judgment affirming it, but, after a careful, patient analysis of the facts and testimony, and looking at the case from every angle, we find it impossible to affirm the judgment. We find that the verdict and judgment are manifestly erroneous, and that defendant is entitled to a reversal.

It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be annulled, avoided and reversed, and that the demand of the plaintiff be, and is hereby, rejected at her cost in both courts.

ON APPLICATION FOR REHEARING

MOUTON, J.

Counsel for plaintiff again refers to the case of Goldsby vs. Lowry, 6 La. App. 450, but now states that the case was not decided on the point urged by him originally.

We have,- in our original opinion, referred to that case and held that we could not accept the doctrine therein announced if the Judges of the Second Circuit intended it as a rule of law. We adhere to our conclusions on this question, as originally expressed.

Counsel again insists that the amended answer filed by defendant militates against his veracity. We have gone fully over this contention in our first opinion and held that the change he had made was to correct an original mistake, and that it had not in any way affected his credibility. It is needless to repeat here what we have heretofore said on this subject, wherein we find no error. Further in his brief filed in support of his application, counsel proceeds to attack the credibility of defendant and his wife. There are no facts or circumstances in the record to sustain that attack, and which is fully discussed in our original opinion. Counsel again advances the reasons originally assigned by him in support of his contention that the judgment below should be affirmed. Our original opinion will show that we have carefully, patiently and diligently gone, almost minutely, over all the material facts and corroborating circumstances of this case in which we were urged by. the desire of not reversing the verdict and judgment appealed from unless assured that the jury had fallen into a manifest error in bringing a verdict against defendant and that the judge had likewise erred in approving it. If we were to indulge in another discussion of this case, we would only repeat what we have heretofore said, as it has been considered in all of its angles and phases in an opinion, much too long, its length being excusable only because we were impelled by the desire to satisfactorily meet all the contentions of learned counsel for plaintiff.

Counsel for plaintiff says that this court has held in a case to which he does not specifically refer, that judgments appealed from come up to the appellate courts with a presumption of correctness, or else there would be no value in the findings of the trial courts. We have invariably so held which is in conformity with the jurisprudence of this State. We have likewise never failed to recognize this rule in appeals from the verdict of juries approved by judgment of trial courts, and have always- given great weight to such findings below. This rule recognizes the presumption of correctness of judgments-appealed from, and the weight which should be given to the verdict of juries, but which in no wise antagonizes the well-established doctrine that when there is manifest error, a reversal is proper and must be granted.

In this very case, we have, in our original opinion, applied the principle of law above referred to in the. following language:

“We have given the consideration due to the unanimous verdict of the jury and the judgment affirming it, but, after a careful, patient analysis of the facts and testimony, and looking at the case from every angle, we find it impossible to affirm the judgment. We find that the verdict and judgment are manifestly erroneous, and that defendant is entitled to a reversal.”

We find no reason to change our former opinion or decree.


source: Caselaw Access Project

author: ELLIOTT, J. MOUTON, J. LECHE, J.

license: Public Domain

text:
    No. 432
    First Circuit
    STRACENER v. NUNNALLY BROS. MOTOR CO. ET AL.
    (April 13, 1929. Opinion, and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      C. A. Battle, of Baton Rouge, and Fred G. Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    John B. Smullin, of Baton Rouge, attorney for defendants, appellees.
   ELLIOTT, J.

This is a redhibitory action brought by, Elbert H. Stracener against Nunnally Bros. Motor Company, a commercial firm composed of Charles F. Nunnally and Boyce Nunnally, to rescind the sale of a secondhand automobile, on the ground that one of the cylinders of the motor had been scored, and injuring it to the extent, that it was practically useless; and on the further ground that in addition to the injury to the motor, the differential gear in the rear axle housing broke into fragments and ground to pieces due to the fact that it was in such a worn condition at the time he acquired the car it was unable any longer to stand the strain of ordinary use.

On the trial the lower court permitted the plaintiff to testify that defendant Boyce Nunnally and J. P. Williams, defendant’s salesman,, had each warranted to him that the car was in good mechanical condition and that the salé was consummated as a result of said warranty; that he was not aware that the written act of sale contained a clause to the effect that no warranties had' been made by the vendor. The defendants contend that this ruling was erroneous. The ruling in our opinion was correct. The plaintiff alleges, in addition to the facts stated, that the injury to the motor and the differential gear were not discoverable by simple inspection; that he was not aware of their existence at the time of the sale and that they prevented the car from functioning properly; that the defendants in selling him the car, warranted it to be in first-class mechanical condition; that in buying it he accepted and acted on their representations; that their representations on the subject were false and constituted, on their part, fraud and bad faith toward him in the matter of said sale.

Defendants allege that they sold the car to the plaintiff by written act, and without warranty, under the stipulation: “No warranties have been made by the vendor, unless indorsed hereon in writing.” They deny in their answer the fraud, bad faith, and misrepresentations charged against them by the plaintiff. The questions of fraud and of warranty are put at issue by the pleadings of the parties.

No warranties are indorsed on the act, whereby defendant sold the car to the plaintiff. The act therefore purports to have been a sale, without any stipulation on the subject of warranty. Consequently, if the sale was made with warranty as alleged by the plaintiff, it follows that the act, to the extent stated, contains a false declaration. In such a situation, parol evidence was admissible and properly received in order to show the truth and fact. Greenleaf on Evidence (I2th Ed.) vol. 1, Subject, “Admissibility of Parol Evidence,” sec. 284, p. 320.

It was also proper in connection therewith for the plaintiff to show by his parol testimony that he was not aware that the act of sale contained the clause quoted therefrom. The plaintiff not only so testified, but there is no evidence to the contrary. He is, in fact, supported by defendant. Boyce Nunnally likewise admits in his testimony that he did not know that the act of sale contained such a clause. As both buyer and seller were unaware that such a clause was contained in the act, it cannot be said to have been stipulated by them, and cannot be given effect, the Code providing that: “Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated,” etc. C. C. art. 1819. The Civil Code, arts. 2235, 2236, 2242, 2276 cited by defendant, do not have reference to such a situation. The case Lyons vs. Fitzpatrick, 52 La. Ann. 697, 27 So. 110, is for the same reason not an authority against the ruling. The printed clause mentioned appearing in the act of sale will, therefore, not be given any effect, but the question of warranty will be determined, according to the pleadings and the oral testimony on the subject.

The plaintiff testified that Boyce Nunnally and J. P. Williams declared to him that the automobile was in good mechanical condition and that ■ he bought it on that understanding. Boyce Nunnally testified that he did not warrant the car to be in first-class condition, that he told plaintiff he did not guarantee used cars. Mr. Williams, however, defendants’ witness and the salesman who represented them in selling the car to plaintiff, admits in his testimony that he guaranteed to the plaintiff that it would run as good as any other car that had been used, for the price asked for it. In answering the next question, he says he did' not guarantee the mechanical condition of the car, but that he knew it to be in good running condition, and told plaintiff that it was in good running condition, and that in so saying he was representing the defendant. The evidence shows that plaintiff is an automobile mechanic; that he inspected the car, ran it some, had another automobile mechanic look at it, and required defendant, before he would agree to buy it, to furnish him with new cylinder rings and a piston pin, without charge, to be by him put into the car. We see nothing in this which should weaken plaintiff’s position in the case. He knew that a used car likely needed or would soon need new cylinder rings and a new piston pin. His requirement amounted to nothing more than a reasonable provision, and there is no reason why he should not — and, as he says, he did — suppose the ear to be otherwise in good condition, and that in buying it he acted on defendant’s guaranty that it was in first-class condition. And it is our conclusion that defendant sold this car to the plaintiff, with warranty against injuries, such as it was subsequently found to have sustained. The situation is therefore different from that which existed in the case Ash vs. Hale, 137 La. 149, 68 So. 389. The evidence shows that this car was practically worthless, because of its condition at the time it was acquired by the plaintiff. The defendant made no effort to show otherwise. The injuries which rendered it so were not apparent nor discoverable by simple inspection, nor as the result of the short trial given it by plaintiff before buying. They manifested themselves on the first trip, which amounted to a real test in the matter of condition, but the actual trouble could not be definitely ascertained except by taking 'the engine apart. The plaintiff did that some ten days after the sale and discovered that the trouble was because the cylinder had been scored, and soon after-wards made the further discovery that the differential gearing had been worn out. These injuries were not of recent date. They existed at the time plaintiff acquired the car. It is very probable that they existed at the time defendant acquired it and that the defendant was not aware of their existence and sold the ear to plaintiff in good faith. But when the vices of the thing sold renders its use so inconvenient and imperfect, that it cannot be supposed that the buyer would have bought it had he been aware of the vices, the good faith of the seller, when there has been no renunciation of warranty, affords no reason under the law why he should not be compelled to restore the price received in the sale. The law provides that it must be restored. “A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.” C. C. art. 2529; Fuentes vs. Caballero, 1 La. Ann. 27; Foster & Co. vs. Baer & Co., 7 La. Ann. 613; Fuller vs. Cowell, 8 La. Ann. 136, 58 Am. Dec. 676; Peterkin vs. Martin, 30 La. Ann. 894; George vs. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432.

The motive which brought about this sale was that provided for by C. C. arts. 1824 and 1825, etc. The parties contemplated that this automobile was fit to do reasonable service, such as would ordinarily be rendered by an automobile of the kind and make, that had been used, but warranted by the seller to be in first-class condition. The contemplated consideration which constituted the motive did not exist.

It has been authoritatively held that “a second hand automobile must be fit to do the work which was intended. An automobile, whether second hand or not, is not fit for the purpose intended, if it is not in running condition. Unless warranty is expressly waived, seller warrants that the thing sold, is fit for the . purpose intended.” Crawford vs. Abbott Automobile Co., 157 La. 59, 101 So. 871. Jackson vs. Breard Motor Co., 167 La. 857, 120 So. 478, March 30th, 1929, is to the same effect. In this case, the plaintiff is entitled to relief but the situation cannot be restored to its former condition. Therefore the Civil Code, art. 2531, must be applied. This article provides that the seller who knew not the vices of the thing sold must restore the price, reimburse the expenses occasioned by the sale, as well as that incurred for the preservation of the thing, unless the fruits which the buyer has drawn from it, have been sufficient to satisfy those expenses. In this case the buyer has been put to no expense on account of the purchase, unless it be some small charge on account of storage. He put the car to some use before its final breakdown, but the use and service received and the operating expense Were about the same. "We think the plaintiff should recover the price, but nothing further. The plaintiff and Boyce Nunnally both testify that the price was $500, but the act of sale states that the sale was made and accepted for $243 on or before delivery and a deferred balance of $300, for which the purchaser executed a note, payable in 12 installments of $25 each, which makes a total of $543. This difference between the price alleged and testified to by both buyer and seller, and that stated in the act, not being explained, we find that the price was $500.

The plaintiff also alleges, and the uncontradicted evidence shows, that the price stated in the act of sale to have been paid in cash, was in fact, to the extent of $200, not cash, but the value placed by the parties on an old car which the plaintiff delivered and defendant received in the sale as a payment on the car in question.

There was judgment in the lower court in favor of the defendant. This judgment was, under the law and the evidence, erroneous. There should have been judgment in favor of the plaintiff as prayed for.

For the reasons stated the judgment appealed from is annulled, avoided, and set aside, and it is now decreed that there be judgment in favor of the plaintiff Elbert H. Stracener, and against the defendant Nunnally Bros. Motor Company and Charles F. Nunnally and Boyce Nunnally in solido for $500, with legal interest thereon from judicial demand until paid.

It is further ordered that the defendants herein have the right to cancel and surrender back to the plaintiff said installment note, to the extent that said installments have not been paid by the plaintiff, which the plaintiff executed and delivered to them in payment of the deferred price of said Oakland coupé, provided said right is exercised and' tender of same made to the plaintiff within 30 days from the time this judgment becomes final; that said unpaid installments, in case said surrender is made within the time stated, be applied as a credit on the above-mentioned price of same.

It is further ordered that the defendants are entitled in the same way to have back from the plaintiff, and within the same time, the said Oakland coupé in the condition it was in at the time this suit was filed, and, in default thereof, that defendants have further credit for the value thereof at said time, if any it had, but the defendants are to pay any storage charges that may be legally and justly due thereon.

Defendants and appellees to pay the cost in both courts.

ON APPLICATION FOR A REHEARING.

MOUTON, J.

In the act of sale of the auto in question from defendant company to plaintiff, the following clause appears:

“No warranties have been made by the vendor, unless endorsed hereon in writing.”

Neither vendor nor vendee knew of the existence of this clause when the contract of sale was executed, but it is however contended by defendant, that it constituted a waiver of warranties.

That clause indicates or means that vendor had made or given no warranties unless endorsed on the act of sale. It shows he was laboring under the mistaken idea that unless he agreed to the warranties and properly endorsed them on the contract, he was not bound by any warranties. It is possible, or even probable, that no warranties had “been made by the vendor;” but even if that were so, they were nevertheless made or implied by law as they are in all contracts of sale. C. C. arts. 1764, 2501. Such warranties are against eviction and latent • or hidden defects of the thing sold, or its redhibitory vices. C. C. art. 2476. These warranties are expressly given by law, and should not be denied the purchaser “unless they have been waived expressly or by the clearest implication.” The reason is that by such waivers the parties make a law unto themselves, in derogation of the general law, and they should therefore be construed strictly. Dufief vs. Boykin, 9 La. Ann. 295.

In the instant case the clause in the contract above referred to, shows that the vendor was under the impression that unless he promised warranties endorsed on the agreement, he could not be held to any warranties. That clause was certainly. not an express waiver of warranties, nor can it be construed as an express waiver by the “clearest implication.”

Here, the warranty against eviction is not at issue, but the defendant company was nevertheless bound to his .warranty against hidden defects of the auto sold or its redhibitory vices. C. C. art. 2476, as there had been no waiver of that warranty.

The proof shows that the defect or vice in the auto made its use so inconvenient and imperfect, if not absolutely useless, it must be supposed that plaintiff would not have bought it, had he known of the vice. That entitled him to an avoidance of the sale, C. C. art. 2520, and to a restoration of the price'even if defendant, vendor, was ignorant of the defect. C. C. art. 2531.

“Unless warranty is expressly waived,” said the court in Crawford vs. Abbott Automobile Co., 157 La. 59, 101 So. 871, “the seller warrants that the thing sold is fit for the purpose intended,” and this rule applies to the sale of an auto “second hand or not.” In this case, which involved the sale of a secondhand auto, the foregoing rule governs. It is, at least, shown by the record that the auto was not in a running condition, and was not therefore fit for the purpose intended, as was held later, in Jackson vs. Breard Motor Co., Inc., 167 La. 857, 120 So. 478.

Judgment was properly rendered in favor of plaintiff.

For the foregoing reasons, and those expressed in the original opinion rendered herein, the rehearing applied for is refused.

LECHE, J.

The defendant is not a manufacturer of automobiles. It sold to plaintiff a secondhand or used automobile. Plaintiff, who himself is an auto mechanic, knew that he was buying a secondhand automobile, the mechanical condition of which automobile was as easily ascertainable by himself as it could be ascertained by defendant. He was given ample time and opportunity to examine, try and find out its mechanical condition and he availed himself of that opportunity.

The written contract of sale says:

“No warranties have been made by the vendor, unless endorsed hereon in writing.”

No warranties are endorsed on the contract and no fraud is shown.

In my opinion the exclusion of warranty is as clear as language can make it, and yet the opinion holds there is no such, exclusion. I respectfully dissent.


author: LECHE, J.

text:
    No. 468
    First Circuit
    BRUMFIELD v. LA. MUTUAL BENEVOLENT ASSN.
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Miller and Richardson, of Bogalusa, and Brock & Carter, of Franklinton, attorneys for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendant, appellant.
   LECHE, J.

The defendant, although its name does not so indicate, is engaged in selling fire insurance, and is domiciled in Shreveport, in this State. The purpose of this suit is to recover the indemnity guaranteed by one of its policies issued to plaintiff, for a loss by fire alleged to have been suffered by plaintiff on January 27, 1928. The policy was bought by plaintiff on or about October 11, 1927, from defendant, through its salesman, J. A. Paff or Poff.

The consideration for obtaining the policy was first a membership fee, fixed at $20.30 cash, then the assumption of an obligation to pay all assessments which might be levied by the board of directors of the defendant.

It would serve no useful purpose to discuss the mode and manner of fixing the amount of the membership fees and of the assessments, as there is no controversy in this suit as to these amounts. Then the policy contains numerous conditions and stipulations, of which we will only hereafter mention such as are pertinent to the differences invoked in the ease. .

The indemnity provided in the policy is fixed at an amount not to exceed, $1420, distributed as follows: $400 on a stock of groceries and automobile accessories, $300 on store fixtures, $400 on household goods and $320 on a light plant and fixtures.

The district court awarded plaintiff a judgment for $915 with legal interest from January 27, 1928, for a penalty of 12 per cent on said amount, and for an additional sum of $100 as attorney’s fees and for all costs of court.

Defendant has appealed from that judgment.

There was an exception of no cause of action filed in the district court, it was ■ overruled, and as it is not argued in this court, it has presumably been abandoned.

The first defense is that the membership fee was never paid. The fact is that Paff, the agent, agreed to accept 50 per cent of the membership fee in cash, to personally advance plaintiff the other 50 per cent and to accept plaintiff’s note payable to himself for that amount. Evidently, defendant acceded to this, for it at once issued the policy recognizing the payment of the membership fee. The note was made payable to Paff,. as agreed, and appears in the record as having been paid. Where an agent accepts the assured’s note in payment of the first premium and the insurance company issues the policy, there is novation, the company agrees to accept its agent as its debtor in lieu and in place of the assured, and the policy is valid even if the note is not paid. Trager vs. La. Equitable Life Ins. Co., 31 La. Ann. 235.

It is contended that plaintiff misrepresented material facts in order to secure the policy and that she intended to perpetrate fraud upon defendant.

The testimony shows that defendant’s agent called upon plaintiff and her husband who kept a little store out in the country on the highway between Bogalusa and Franklinton, that by his insistence, he intended them to join the defendant association or company, and to take out a fire insurance policy. That this agent filled out the application, that this guileless couple concealed nothing from him, that they even asked him if they should get an iron safe to keep their books, because a lady in Franklinton had told them that an iron safe in a store was necessary in order to obtain insurance on the stock and that the agent assured them that they need not get any safe. The testimony fails to show any concealment of facts or misrepresentations and our opinion is that this defense entirely lacks support.

Defendant again contends that under its rules, the company only binds itself to pay to the member who has suffered a loss by fire, not over two-thirds of the amount of the assessment paid in by the members of this group. That an assessment was levied November 22, 1928, and that two-thirds of that assessment amounts to only $148.47, and that in no event should it he held liable for more than this amount. It is to be noted that the loss took place January 27, 1928, and that the assessment is said by defendant to have been levied the latter part of November, 1928, nearly ten months after the loss should .have been paid. The proof as to the amount which the assessment should have realized is vague and not established with any certainty. Plaintiff contends in substance that this is only a subterfuge to avoid payment of the loss, and we are similarly impressed.

The whole record teems with inconsistent defenses. It may be that defendant is acting in good faith, but it appears to us that plaintiff was misled by defendant’s agent and it is only equitable and legal that it, and not plaintiff, must be held to be the victim of the actions and representations of that agent.

Whether the property lost was separate property of the wife or community property can be of little concern to defendant. A receipt from the wife or the husband or from both of them will forever acquit defendant from any further liability on the policy. That is a question of law which does not affect the sincerity and honest motives of plaintiff. There was no misrepresentation by plaintiff and therefore no fraudulent concealment.

The district judge found as a matter of fact that plaintiff’s loss was $915 and he rendered judgment accordingly. We see no reason to amend or reverse his judgment.


author: ELLIOTT, J.

text:
    No. 477
    First Circuit
    CROW v. RAYMOND CONCRETE PILE CO.
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    H. Sellers & Eugie V. Parham, and Edw. Rightor, all of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Levi L. Crow, employed by the Raymond Concrete Pile Company in the work of constructing the Watson-Williams bridge across Lake Pontchartrain, fell through the bridge structure while carrying on his shoulder a load of iron pipe and was severely injured. He was engaged at the time in the work he was employed to do. Slivers of steel in some way got into his eye as a result of his fall, but he sustained other and more important injuries to his side and in the hernial region of his abdomen.

The occurrence took place on or about September 29, 1927. He was receiving at the time forty cents an hour or $3.20 per day, in amount, $19.20 per week as wages. He claims that his injuries have produced in him a permanent total disability to do work of any reasonable character and that he is entitled to 65 per cent of his weekly wages for 400 weeks under the Employers’ Liability Act of this State.

Defendant denies plaintiff’s averments. Defendant, further answering, avers that if plaintiff received an injury which resulted in a hernia, it did not occur on September 29, 1927. It was established on the trial without dispute, that the plaintiff received his injuries as alleged in his petition, and whether it happened on the 26th, 27th or 29th of September, 1927, it makes no difference in the case.

Plaintiff in some way got slivers of steel in his eye when he fell, but his serious injuries were to his side and abdominal region. His sudden fall was immediately followed by severe pain in his side and hernial region. In that respect, there was such prostration that he was compelled to cease work immediately. The facts were of such severity that same were noticed by ¡claimant and communicated at the time to his employer’s foreman having charge over him. The statute, Act 85 of- 1926, provides that the descent of the hernia must immediately follow the injury and seems to contemplate that the descent must be immediately noticed by the party injured and communicated to his employer. The plaintiff was not aware immediately after the injury, that he had sustained a hernia, nor was his employer', so informed, consequently while the technical requirement of the statute on the subject of hernia was not accomplished, still it appears that plaintiff’s injury in the hernial region was immediately noticed as stated and observed by his employer there and then, but it was not known at the time by the plaintiff nor by his foreman that he had sustained a hernia. The plaintiff acting on the advice of his foreman laid down. The. pain in his side and abdominal region subsided after he' had laid down and remained quiet for a while, but his eye continued to pain him. Thereupon the foreman had him carried ashore and sent him to a local physician in the employ of the defendant.

The doctor treated his eye, and on the occasion of his first visit, plaintiff did not complain to the physician of any pain in his side or abdomen. But that night his side and abdomen pained him severely, so the next morning he went to the doctor on that account and the physician applied an adhesive strap to his side. The physician states in his report concerning plaintiff’s condition, brought up in the record, that he treated plaintiff about two o’clock p. m., September 29, 1927. He found foreign body in his eye and strain of abdominal muscles from lifting. Consequently, a visit the next morning after the first, was within the forty-eight hours provided for by the statute on the subject of hernia. According to the evidence, the local -physician treated plaintiff for his side and abdomen for about ten days and then sent him to be examined by defendant’s physicians in the city of New Orleans. At the time he sent plaintiff to New Orleans, he was not aware, nor was the .plaintiff, that he had sustained a hernia. The physicians in New Orleans discovered that plaintiff had sustained a small inguinal hernia and supplied him with a truss.

The physician in New Orleans says that in his examination, he found a slight swelling in plaintiff’s left side which he took to be caused by the inguinal hernia. Plaintiff then returned home, upon which, the local physician also established the hernia.

Plaintiff complains that he evacuates blood from his bowels following slight exertion, as a result of his injury. Defendant’s local physician and the physician in New Orleans questioned' on that subject, gave as their opinion, that it was not connected with the hernia. They did not deny that an occurrence of the kind takes place, as claimed by the plaintiff, but they could not account for it.

At the time of the trial plaintiff was examined by another local doctor under the order of the court. This physician not only reported the hernia, but that plaintiff had a sensitive area over- the colon, and was suffering with traumatic neurosis. He testified that traumatic neurosis may be produced by violence. As for the evacuation of blood, he does not say that it does not occur as claimed by plaintiff, but says he cannot account for it.

He gave it as his opinion that plaintiff’s mind was centered a great deal on the evacuation of blood, that it was watched for and made him melancholy. His prognosis of plaintiff’s condition, was, that he suffered mental distress due to his inability to work. He did not know the cause of the hemorrhage of which plaintiff complained, but agreed that plaintiff had some injury to his left side in addition to the hernia. He looked on the hernia, from the history of the case, as having been caused by violence. He states that it can be cured by an operation, but that plaintiff’s mental condition may not be cured by it. He considered plaintiff’s condition as liable to last for a long time, and that he was in no condition to perform manual labor.

The testimony of the plaintiff and of this physician as to his inability to labor is not disputed and may be regarded as established.

The local physician in the employ of defendant testified that when plaintiff first came to him, it was to treat his eye, and that plaintiff told him that about three days previous he was hurt in the side; that he made a record of these cases, etc. The report brought up in the record purports to have been made on September 29, 1927, and mentions an injury to his eye, and also strain of abdominal muscles by lifting. It says that the injury to the eye and to the abdominal muscles were both sustained September 29, 1927, at 2 o’clock p. m. The record contains a statement made by a young lady in the employ of defendant in New Orleans, in which she reports plaintiff as having said to her: “On September 26th, 1927, I was laying a pipe line and stepped on a piece of angle iron or reinforcement steel and tripped with a load on my shoulder.- .This caused a terrible strain inside', but nothing struck me. I ached for a short time, but continued to work until September 29th and had to see Dr. Griffith.” Dr. Griffith is the local physician in the employ of the defendant. We are satisfied from plaintiff’s evidence that the injury to his eye and that to his side and abdomen were all received at the same time and in the same fall. That is what Dr. Griffith reported to defendant, and the fact is supported by defendant’s foreman, Mr. Hartman.

And the fact of the injury and complaint on account of injury to the side and abdomen to a physician within forty-eight hours being established in the way stated, we think the requirements of the law on the subject of hernia have been satisfied. But the evidence shows that plaintiff is entitled to compensation as a permanent total disability to do work of any reasonable character under Act 20 of 1914, Section 8, paragraph (b), amended Act 85 of 1926. The evidence shows that plaintiff’s condition is the direct result of his injury, received as above stated. The indication is that.it will endure for a long time, and the evidence does not indicate when it will be otherwise than as existed at the time of the trial. The evidence justifies the inference that manual labor is the only kind which plaintiff is capable of performing. Plaintiff was awarded compensation at the rate of $12.40 per week for a period of four hundred weeks, to be counted from September 29, 1927..

If it should turn out that his disability is not total and that it does not endure for the period stated, the statute on the subject provides a remedy.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.


text:
    No. 502
    First Circuit
    MERCHANTS & FARMERS BANK & TRUST CO. ET AL. v. FIRST STATE BANK & TRUST CO. (HAMMOND STATE BANK, Intervener)
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Burns & Pierson, of Ponchatoula, attorneys for plaintiff, appellant.
    B. M. Miller, of Covington, attorney for defendant, appellee.
    A. W. Spiller, of Hammond, attorney for intervener, appellee.
   LECHE, J.

Plaintiffs obtained a judgment for $800 against the First State Bank & Trust Co., and thereafter caused a writ of fieri facias to issue on said judgment, and in execution of that writ further caused garnishment process to issue in order to seize funds and credits in the hands of the Hammond Motors Company, Inc., belonging to or due to the said First State Bank & Trust Company.

The Hammond Motors Company, was, at the time, in the hands of a receiver and the interrogatories in garnishment were served upon and propounded to the receiver, whose answers show that an amount in excess of $2,000 was at the time of service and is still due by the Hammond Motors Company to the First State Bank & Trust Company, the debt thus due by the Hammond Motors Company to the First State Bank & Trust Company being represented by various notes.

Pending this garnishment proceeding, the Hammond State Bank & Trust Company intervened therein and asserted that it held as pledgee the notes evidencing the indebtedness of the Hammond Motors Company, due by said motors company and originally held by the First State Bank & Trust Company, and it prayed in its petition of intervention, that it be decreed entitled to collect and to receive the amount due by the Hammond Motors Company to the First State Bank & Trust Company. Intervener alleges in its petition that it is the pledgee and holder of the notes issued and subscribed by the Hammond Motors Company, for having received the same in pledge on July 2, 1926, from the First State Bank & Trust Company, that it is entitled to receive the said indebtedness of the Hammond Motors Company by privilege and preference over all other creditors and especially over plaintiff, the Merchants and Farmers Bank & Trust Company.

In this court, the contention between the Merchants and Farmers Bank & Trust Company, plaintiff, and the Hammond State Bank & Trust Company, intervener, is limited to the validity of the pledge, the title by which intervener claims the right to collect and receive the indebtedness of the Hammond Motors Company. It is not denied that , the notes representing the indebtedness of the Hammond Motors Company to the First State Bank & Trust Company were not in the actual possession of the pledgor at the time the pledge was made. The notes were in the possession and custody of the Clerk of the United States District Court in New Orleans, according to whose certificate the notes had been filed in his office on February 8, 1926, as part of the proof of debt of the First State Bank & Trust Company, in the matter of Hammond Motors Company, Inc., in Bankruptcy, No. 3095 of the docket of that court.

We understand that the notes in question not being in the custody and possession of the First State Bank & Trust Company, could not actually be delivered to intervener, and that in order to effect substituted delivery, the pledgor handed over to intervener copies thereof. It is not pretended that the pledge could be made' without delivery as required by art. C. C. 3152, which says that delivery is of the essence of the contract of pledge, but it is contended that delivery of copies constituted full compliance with the statute. ■

Professor Denis in his treatise on the contract of pledge says:

“There is no such thing as a symbolical delivery of negotiable instruments. The law does not recognize for commercial purposes, a right of possession as distinct from the actual possession. The evidence of ownerhip of negotiable bills is their possession, properly endorsed, so as to pass title to the holder.”

Control of the pledge, must, under the law, pass from the pledgor to the pledgee, and this is a necessary condition which can only be brought about by actual delivery. Under the facts in this case, there was nothing to prevent the pledgor from obtaining control and custody of the notes from the U. S. District Court, after the pledge was made, and to dispose of the notes in violation of the attempted pledge.

We are clearly of the opinion that the attempted pledge from the First State Bank & Trust Company to the Hammond State Bank & Trust Company was null as to the plaintiffs and all other third persons.

For these reasons the judgment appealed from is avoided and reversed and the intervention of the Hammond State Bank & Trust Company is dismissed at its cost in both courts.


text:
    No. 483
    First Circuit
    REED v. KRAAK
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Harvey E. Ellis and R. D. Jones, of Covington, attorneys for plaintiff, appellee.
    Wm. H. Talbot, of New Orleans, attorney for defendant, appellant.
   LECHE, J.

The demand in the above suit, is for damages resulting from an automobile collision which occurred in the town of Mandeville about June 23, 1927. The plaintiff was driving his own Ford sedan on Claiborne Street, in an easterly direction, while defendant’s Cadillac automobile, driven by his son, was moving in a northerly direction on Lafitte Street which intersects Claiborne Street at a right angle. The collision took place at the intersection of these two streets in broad daylight, at about eleven o’clock a. m.

When plaintiff reached the intersection, he stopped and looked, and, there being no vehicles in sight, he proceeded to cross Lafitte Street. When he had crossed the center of Lafitte Street and was nearing the further side, his automobile was suddenly run into, and struck about the rear fender by that of defendant’s. He was injured about his person and his automobile was partly wrecked. It is admitted that defendant’s automobile was moving at a speed of thirty-five miles per hour and defendant’s son concedes that at the speed he was going, he could not turn aside or prevent the collision.

The district judge found that the defendant was at fault and awarded damages to plaintiff in the sum of $735.83, and it is from this judgment that defendant has appealed.

It appears from the evidence that Lafitte Street is one where traffic upon it has the right of way. We understand that this right of way simply means that cross traffic reaching the intersection about the same time, must yield precedence to the traffic on Lafitte Street and nothing more. It does not mean that traffic on cross streets must wait until vehicles several hundred feet away, go pass the intersection before it can enter upon Lafitte Street.

The speed limit on the streets of Mandeville is fixed at 15 miles per hour, or say approximately 22 feet per second, while defendant’s automobile was moving at approximately 52 feet per second. It is then well conceivable that when plaintiff stopped before crossing Lafitte Street, defendant may have been out of sight and a block or more away, a distance which justified plaintiff in attempting to cross Lafitte Street without interfering with the movement of defendant’s automobile.

We are therefore of the opinion that defendant was at fault and that he was heedless and reckless.

This finding is not irreconcilable with that which we reached in the case of Herbert vs. Robichaux, 8 La. App. 789, where the plaintiff failed to stop and to look before entering upon a highway alive with traffic and not under municipal speed-control.

The district judge awarded plaintiff the amount it cost him to put his car in' running order, and the damage to the car top and frame, viz: $135.83, and $600 for his personal injuries, or a total of $735.83.

Defendant complains especially of the amount, awarded to plaintiff for injuries to his eye, his neck and his knee. Dr. Payne testified as to the wounds and lacerations to plaintiff’s head, his eye and his knee. He says that one of the worst wounds was over plaintiff’s right eye and that his neck, the upper part of his back and his shoulders were badly bruised. Plaintiff suffered for three or four months. According to this testimony we find that an allowance of $600 is reasonable and see no reason to curtail it.

For these reasons the judgment of the district court is affirmed.


author: ELLIOTT, J. PER CURIAM:

text:
    No. 497
    First Circuit
    BEL v. LA. POWER & LIGHT CO.
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    S. S. Reid, of Amite, attorney for plaintiff, appellee.
    Milner and Porteous, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Caroline P. Bel claims damages of the Louisiana Power & Light Company in amount, $15,290 on account of the death of her daughter, Bessie Rosa Bel, killed on June 3, 1928, as a result of coming in contact with defendant’s electric wire. The wire in question is the one which furnished her residence with electricity for lighting purposes. Mrs. Bel alleges that said wire should have carried for that purpose a voltage of 110 volts, but that same, through the negligence and fault of defendant, became charged with a voltage of 2300 volts.

The defendant denies the negligence alleged against it and alleges that plaintiff’s daughter lost her life as a result of her act in standing on a stove in plaintiff’s kitchen and attempting to use the electric light near the stove on which she was standing. That the stove had a water pipe running through it containing water. That the electric socket on the wire being defective, and the stove having a water pipe running through it containing water, the same made a perfect ground. That the death of plaintiff’s daughter was due to the defective socket and to the fact that her daughter took hold of the socket while standing on the stove, containing water.

Defendant admits that the ordinary voltage for lighting purposes on a drop wire is 110 volts, and denies that a larger voltage was on said wire at the time in question. ! ¡

There was judgment in favor of plaintiff for $7,790.

The defendant has appealed.

The plaintiff alleges that her daughter was killed while attempting to turn on the electric current; but Mrs. Margaret Bel, present at and the only eyewitness of the occurrence, says: “She (Bessie Rosa) had gotten up on the stove, and was going to clean out the stovepipe, and I was helping her. I had just turned the stovepipe loose, and she grabbed the light wire, I guess, to see how much soot was in the stovepipe; and she said, ‘Oh!’ And after she said that, she fell, and I picked her up.”

She further testified that Bessie Rosa put her left hand on the wire, probably 10 or 12 inches above the socket, maybe not quite that much; that the light was on at the time; that the wire was just an ordinary drop light wire.

“Q. How long was it after she took hold of that wire, before she fell?
“A. Just instantly. It was instantaneous; just a flash of a second, you might say.”

The stove had a hot-water pipe in it, and the statement 'of Mrs. Margaret Bel justifies the inference that Bessie Rosa Bel took hold of the drop wire for the purpose of drawing the light nearer to the stove or pipe, in order to see if all the soot had been removed; but she fell the instant she took hold of the wire.

The accident occurred about 7:30 or 8 o’clock p. m.

The electric light in question was the only light in the kitchen; it was instantly extinguished by the occurrence, leaving the kitchen in darkness. It was some 10 minutes before a lamp could be obtained, and when it was done it was found that the socket on the end of the wire was on the floor. Nobody saw it pulled off, but a reasonable inference is that, when Bessie Rosa Bel took hold of the wire, 10 or 12 inches above it, the current caused her hand to involuntarily and tightly grip the wire, and falling at the same time, with the wire tightly gripped in her hand, the weight of her falling body caused the wire to slip through her hand until it reached the socket, when, her grip not relaxing, the weight of her falling body jerked the socket from the wire. The socket was evidently stripped from the end of the wire as a result of her falling body, not acting consciously nor voluntarily.

Defendant’s argument that plaintiff’s daughter pulled off the socket, and that her act in doing so constituted negligence, cannot, in our opinion, be properly deduced from the established facts of the case.

The cry, “Oh!” the fall, and the death grip occurred the instant that decedent took hold of the wire, some 10 or 12 inches above tbe socket. Her hand did not come in contact with the socket until the result of having taken hold of the wire had been accomplished.

Defendant’s liability is to be judged by the voltage in its wire 10. or 12 inches above the socket, at the time when the decedent took hold of it. Defendant maintains four wires, two of them primary or high-powered wires, which carry each 1,080 volts. The other two are secondary wires, which carry current into the house, each of which ordinarily contains 110 volts. These four wires all pass through a tree not far from plaintiff’s house. In passing through the tree, the high-power wires and secondary wires are only about one inch apart. One of these secondary wires supplies the current for plaintiff’s house. These high-power and secondary wires, it was shown, also touched at times the same limb in the tree, and, when this connection was made, the- high voltage from one or both of the primary wires entered into the voltage of the drop light in question, rendering it deadly to take hold of.

A test made a few minutes after the death of plaintiff’s daughter showed that that is what had taken place on the occasion in question.

The evidence shows that the insulation on a drop-light wire, such as entered plaintiff’s house, will, when new, protect from a voltage of about 600 volts; but this insulation had- become old, - and therefore would not likely, at that time, protect to that extent. The evidence shows that a person may be killed by a, voltage of only 110 volts, if subjected to it while standing on a stove which contains water, but that it cannot occur if the wire is insulated as this one was. But this wire contained a greater voltage than 110 volts; just the amount is a matter of conjecture, but the result shows that it was deadly.

Defendant’s local manager and representative came to the house within 10 or 15 minutes after the occurrence, and ascertained that the wires in the house contained a dangerous amount of voltage, and had it cut off. Defendant’s manager expressed the belief that the voltage could not have been greater than 540 volts, but it is equally possible that it was 1,080.

The defendant was negligent and at fault for running its high-powered wire so close to the secondary wire, and so near a limb that the wires both touched the same limb. The high voltage was in that way wrongfully and negligently carried into plaintiff’s residence, and resulted in the death of her daughter, due to its unsuspected presence.

The defendant must know the condition of its property and keep it safe, so that it may not do damage to others.

The law provides that “we are responsible not only for -the damage” on account of “our own act, but for that which is caused * * * by the things which we have in our custody.” Civil Code, -art. 2317.

This article of the Code was applied to the duties of an electric light company in the case of Yates vs. Electric Light & Power Co., 40 La. Ann. 467, 4 So. 250.

In the case of Myhan vs. Electric Light 6 Power Co., 41 La. Ann. 964, 6 So. 799, 7 L. R. A. 172, 17 Am. St. Rep. 436, the court, referring to the unknown character of the danger which exists from high voltage wires, and the duty of the electric light company to find out and guard against dangerous conditions, said:

“At any rate, it was the duty of the defendant company to have known of the dangerous character and condition of the wires. The knowledge which they ought to have had, the law presumes, juris et de jure, they had. Even had the company’s representatives sworn that they did not know of the same, such ignorance on their part would not have exculpated them. A superior is presumed to know, and under the law knows, that which it is his duty to know, namely, whatever may endanger the person and life of his employee in the discharge of his duties.”

In this case plaintiff’s daughter was not an employee of defendant. The application of the case is that it was defendant’s duty to know existing conditions in its wires, and to keep them safe, so that unsuspecting parties, having occasion to take hold of a drop wire for any reasonable purpose, may not be killed by it.

In the case of Clements vs. Electric Light Co., 44 La. Ann. 692, 11 So. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348, the court, having in mind the same idea of care on the part of an electric company said: “He had a right to believe they were safe and that the company had complied with its duties specified by law.”

In this case plaintiff’s daughter, engaged in cleaning the stovepipe, acted on a natural impulse in taking hold of the wire while standing on the stove. Under ordinary circumstances it would have been perfectly safe for her to do it, but, defendant having allowed its wire, through negligence, to become charged with a deadly voltage, against which the insulation was without effect,, the plaintiff’s daughter was killed by it, while not suspecting the slightest danger.

In Lapouyade vs. New Orleans Ry. & Light Co., 138 La. 237, 70 So. 110, the court, referring to the act of an electric light company in failing to obey an ordinance requiring it to keep its high-powered wires insulated at all places of contact, in a case in which it was shown that a party had taken hold of a wire, not insulated as required, but which the party had no business to take hold of, and who was killed as a result of having done so, used the following language:

“A different rule would have had to be applied in this case if the trespass had been so very slight as to have been purely technical; and such a one as anybody “might be guilty of inadvertently or even intentionally, on the assumption that no harm could possibly result, and that the owner of the property would certainly not object.”

In the case cited, the court found that there were signs which indicated that the hanging wire was not intended to be handled by parties whose business did not make it their duty to do so, and which amounted to a warning to let it alone; that the meddler in that case, in taking hold of the wire for the purpose for which he was shown to have done it, was in fact a trespasser. Defendant contends that the proximate cause of the death of Bessie Rosa Bel was her act in taking hold of its wire, which it had placed in her mother’s kitchen for lighting purposes, while standing on a stove, for the purpose of looking to see if the soot had all been removed from the stovepipe; the stove containing a water pipe with water in it, making it a deadly ground.

Authorities are cited on the question of proximate cause. We do not think the authorities and argument on the subject appropriate to the situation. The act of plaintiff’s daughter did not, in our opinion, amount to a fault. Her daughter had no reason to suspect that there was danger in taking hold of the drop wire above the socket, for the purpose stated. Her act was not meddling as in the case above cited; she was not doing something that she had no right to do, but something she had a right to do; and, if the drop wire had contained only 110 volts, the insulation would have rendered the act harmless. But this wire had become, due solely to the fault and negligence of the defendant, charged with a voltage so high that the insulation with which it was provided was no protection. It was not intended to carry such a voltage. It had been permitted to become a deadly menace to those in the hahit of using it, without the slightest suspicion on their part. The proximate cause of the occurrence in question was the neglect of the defendant in that respect.

As for the contention that plaintiff’s daughter may have lost her life, due to some other cause than the shock from defendant’s wire, it is sufficient to say that no cause for the death of plaintiff’s daughter appears, except that which resulted from her taking hold of the drop wire, which she had a right to suppose it was safe to do, when due to defendant’s fault it had become deadly to do so.

In regard to the contention that plaintiff’s daughter pulled off the socket in falling, and by so doing exposed her hand to the unprotected voltage at the ends of the wire, and in that way lost her life as a result of her act in so doing, the argument implies fault and negligence on the part of plaintiff’s daughter in pulling off the socket. Our view of the matter is as above stated. The socket was jerked from the end of the wire, in our opinion, as the result of an involuntary and unconscious grip, taken 10 or 12 inches above the socket, after plaintiff’s daughter had received a shock, and for which her daughter was not accountable nor at fault.

Judgment appealed from is in our opinion correct.

ON APPLICATION FOR REHEARING.

PER CURIAM:

After mature consideration of the application of defendant, appellant, for a rehearing, the judgment appealed from is amended as follows:

The item of $7,500 is reduced to $5,000, the item of $290 to remain as rendered.

With this amendment, the application for a rehearing is refused.


author: REYNOLDS, J.

text:
    No. 3501
    Second Circuit
    KIRBY ET AL. v. CRYSTAL OIL REFINING CORP.
    (July 1, 1929. Opinion and Decree.)
    (November 4, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    A. M. Pyburn, of Shreveport, and Spearing & Mabry, of New Orleans, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiffs, Oliver Kirby as the father, and Addie Kirby as the sister, of J. C. Kirby, deceased, sued defendant, Crystal Oil Refining Corporation, for judgment under the Workmen’s Compensation Law of Louisiana for compensation for the death of J. C. Kirby, who was accidentally killed while performing duties for and in the course of his employment by defendant, and who, at the time of his death, was receiving a weekly wage of $45.50. The father demanded 32per cent, of this amount for 300 weeks and the sister 11 per cent, of the amount during the same period. The father also demanded $250 as the reasonable expenses of the burial of the deceased and the reasonable contingent expenses in connection therewith.

The defendant admitted the employment and accidental death of J. C. Kirby arising out of and in the course of his employment and that he was being paid a weekly wage of $45.50, but denied liability to either plaintiff for compensation in any amount. However, on the trial, defendant admitted its liability in case of dependency and limited its defense to the issue of whether both or either plaintiff was dependent on the deceased at the time of his death and as to whether both plaintiffs were entitled to recover.

On these issues the case was tried and there was judgment in favor of the father, Oliver Kirby, for compensation of $14.78 a week during 300 weeks, the first payment being decreed due May 25, 1928, with legal interest on each payment from its maturity until paid, and for $150, for the burial expenses of the deceased and contingent expenses in connection therewith, and rejecting the demands of the sister, Addie Kirby.

From this judgment the plaintiff Addie Kirby appealed.

OPINION

The only question presented for decision is whether the plaintiff Addie Kirby, the sister of the deceased, also is entitled to compensation notwithstanding he left a father who was dependent on him for support.

The accident to and death of the employee occurred on May 18, 1928, and therefore the rights of the parties are governed by Act No. 85 of 1926, sec. 8, subsec'. 1, par. (E), clause 8, of which provides:

“If there be neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. * *

In view of the fact that the deceased left surviving him a father who was dependent on him for support at the time of the accident and death, it is clear that the sister was not entitled to the benefits of the act.

It is only where the deceased left “neither widow, widower, nor child, nor dependent parent entitled to compensation,” that a dependent sister or brother is entitled to demand it.

But plaintiff contends that not Act No. 85 of 1926 but Act No. 216 of 1924 fixes her rights and defendant’s liabilities, and cites sec. 8, subsec. 1, (par. (g) of that act in support of her contention. That paragraph provides:

“* * * but if only one parent be actually dependent on the deceased employee to any extent for support at the time of the injury and death and there be brothers and sisters and other members of the family of the deceased employee hereinabove no.t specifically provided for, then if any such brother or sister or other member of the family not otherwise specifically provided for was actually dependent on the deceased employee for support to any extent at the time of the injury and death, eleven percentum additional for each such brothér or sister or other dependent member of the family not otherwise specifically provided for, subject to a maximum of sixfy-five per centum of wages for all.”

In our opinion the paragraph copied from the Act of 1924 was repealed and superseded by the paragraph copied from the Act of 1926.

The two paragraphs are inconsistent. The latter allowed compensation to others besides father or mother where only one parent was dependent on the deceased child for support aqd he left neither wid0¥, widower nor child, while the former allows compensation to a brother or sister only in the event the deceased left “neither widow, widower, nor child, nor dependent parent entitled to compensation,” and the deceased in this case having left a surviving parent entitled to compensation he was entitled to all and the sister to none of the compensation payable under the act.

When any part of an amended act is omitted from the amending act, the omission must be considered repealed.

Flournoy vs. Walker, 126 La. 489, 52 So. 673.

“When a statute has been amended and re-enacted, any part of the amended act that is omitted from the amending and reenacting statute is thereby repealed.”

State ex rel. Brittain vs. Hayes, 143 La. 39, 78 So. 143.

The paragraph copied from the Act of 1924 is both amended and re-enacted by the paragraph copied from the Act of 1926.

The judgment appealed from is correct and accordingly it is affirmed.