text:
    No. 3503
    Second Circuit
    MORSE v. OATES
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      Harry V. Booth, of Shreveport, attorney for plaintiff, appellee.
    Crow & Coleman, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

On October 4, 1927, plaintiff, C. K. Morse, purchased from defendant, J. F. Oates, a second-hand or used automobile, which, after being used for a short time, was found to be defective, in that the machine was in such condition that one of the connecting rods would be damaged when the car was operated and would have to be repaired at short intervals, and plaintiff returned the automobile to defendant’s garage on or about October 10, 1927, when it was found that a stud holding the center main bearing cap was broken off in the block, and defendant agreed to furnish the material, labor and parts necessary to remove the stud and replace same. At the same time plaintiff requested that other new parts be installed, which was not deemed to be necessary as a part of the replacement of the broken stud, and plaintiff agreed to pay for such new parts and for the work of installing same. On completion of the work, on or about October 20, 1927, plaintiff gave a note for the new parts and cost of installation, and the car was delivered to him. A short time thereafter, plaintiff drove the car from Shreveport to Dallas and Fort Worth and on the trip it became necessary to replace a connecting rod, causing plaintiff to be delayed and to fail to keep a business appointment; and, on the return trip to Shreveport, it again became necessary to replace the connecting rod, and in the succeeding sixty or seventy days, during which period plaintiff drove the car from Shreveport to various places in Louisiana, Mississippi and Alabama, it was necessary to replace the same connecting rod nine times; and thereafter, on or about January 15, 1928, overhauled the machine and installed another cylinder block, together with new pistons, rings, crank shaft and other miscellaneous parts.

The note given by plaintiff to defendant became due and was paid by his sister, and, in the present suit plaintiff alleges that the repair or replacement of the stud which had been broken off in the block, had been improperly performed and contrary to plaintiff’s instructions, and that by reason of the improper work it had been necessary for plaintiff to replace the connecting rod eleven times, at an expense of ninety-nine dollars, itemized as follows: Thirty-three dollars, cost of rods, and sixty-six dollars, installation charges, and that he had suffered serious losses by reason of the improper work done by defendant, especially on the trip from Shreveport to Port Worth and Dallas, and that the delay, inconvenience and worry were well worth the sum of fifty dollars, and further, that by reason of the defective work, it was necessary for plaintiff to install another cylinder block, crank shaft and miscellaneous' parts at an expense of two hundred thirty-three and 10/100 dollars, itemized as follows: Seventy-three dollars, cost of cylinder block, forty dollars, cost of crank shaft, thirteen and 10/100 dollars, cost of miscellaneous parts, and one hundred seven dollars, cost of installation; and plaintiff further set up that the note which had been given by him for parts and work had been paid by his sister with his funds, and that the amount paid, principal and interest should be returned to him.

Defendant admitted that he had sold the automobile to plaintiff and that plaintiff had given the note for parts and labor, and that the note had been paid by plaintiff’s sister, and otherwise denied plaintiff’s allegations.

On trial, evidence was introduced showing that, in addition to the items claimed under the charge of installation of the cylinder block, aggregating two hundred thirty-three and 10/100 dollars, plaintiff had also purchased and installed new pistons and rings, and allowance was made for same, as well as all claims set up by plaintiff, except the claim for the cylinder block, which was reduced from seventy-three to fifty dollars, and the claim for amount paid by plaintiff’s sister on the note was reduced from fifty-three and 06/100 dollars to thirty-eight and 06/100 dollars, and judgment rendered in favor of plaintiff for four hundred thirty-three and 16/100 dollars, with interest.

The case was presented on the theory that the removal of the stud which had been broken off in the cylinder block had been deliberately or knowingly executed in such manner that the cylinder block had been injured, and that it was impossible to .replace the stud in such block in a proper manner, but that the stud had been forced in place and the car delivered to plaintiff in such condition that it could not be operated without continually replacing one of the connecting rods, and damaging other parts of the car, rendering it necessary for another cylinder block, with new pistons, rings, crank shaft and miscellaneous parts to be installed, and thus, that defendant should be held liable for the expense incurred in installing the cylinder block, pistons, etc., and for expense incident to replacing the connecting rods ruined during the period that plaintiff attempted to operate the car, and the expenses of plaintiff’s trip to Dallas, and that defendant should restore the amount collected on the note given by plaintiff for the parts purchased from and installed by defendant.

.Appellant urges that the evidence shows that the method employed in removing the broken stud was the pnly means by which it could be removed and that the work was done in the usual manner. However, the workman who removed the stud, who was not an employee of defendant, stated that the car had been brought to him by an employee of defendant to have the stud removed, and that he informed defendant’s employee that the motor might be injured in removing the stud in the manner in which it was removed, but that defendant’s employee told him to proceed, and it is shown beyond controversy that the cylinder block was injured to such an extent that the car could not be repaired properly without using another cylinder block, and, in making the repair without procuring and using another cylinder block, the workmen knew that the work was not properly executed; and we are of the opinion that the workmen were in bad faith, and defendant became liable, not only for such damages as may have been contemplated, but for such damages as may have been foreseen or were the immediate and direct consequence of their action. (C. C. art. 1934, par. 2.)

The workmen, knowing the condition in which the car was delivered, must have contemplated that it would soon be necessary for plaintiff to have the car repaired, as to which they knew it would be necessary to install another cylinder block, and they should be held to have foreseen that other parts of the machinery might be injured if plaintiff attempted to operate the car in the condition in which it was delivered to him, and that such parts would have to be replaced at the time another cylinder block was installed, and the evidence showing that it was necessary, in order to place the car in condition to be operated, that another cylinder block with other parts, crank shaft, miscellaneous parts, pistons and rings should be installed, and that such parts were installed, defendant should be held responsible for the cost of such work, unless it may be said that plaintiff, having failed to claim in his petition for the cost of pistons and rings, should not recover for those items.

The evidence showing the expenditures for-such parts was not objected to, and the effect was to extend the pleadings, and plaintiff, we think, was properly allowed to recover for the cost of the parts, cylinder block, crank shaft, etc., and cost of installation, amounting to two hundred forty-six and 10/100 dollars, but we do not think that defendant should be held liable to plaintiff for replacement of the connecting rods or for plaintiff’s expense on the trip to Dallas, or that defendant should refund the amount collected on plaintiff’s note.

Relative to the claim for replacement of the connecting rods, it was shown that plaintiff had been an automobile mechanic, and on the claim presented by him he charges defendant for work done by plaintiff in replacing the rods on the basis of a schedule of charges for work of the same character said, to be published by the manufacturers of the particular automobile, and the replacements being identical with those of which plaintiff complained were necessary prior to the work done by defendant of which complaint is made, and the replacements extending over a period of two months, we think that in the absence of evidence that plaintiff did not know the condition of the car, he should not be permitted to recover for such temporary repairs, but should be held to have known of the condition of the car and to have chosen to operate it in that condition, and to bear the expense incident to operating the car.

The evidence does not show that defendant did not know the condition of the car, but indicates to the contrary, as it is shown that he made complaint when the car was delivered to him, and plaintiff states that when he replaced the rod he had to remove the motor and he discovered “that the main center bearing cap that they put in down there at the original job was cracked in half, etc.,” which appears to be the same condition which he found to exist at the time it was delivered to defendant for repairs, and under the evidence, we do not think plaintiff should have been allowed to recover for replacing the rods.

As to the claim for damages sustained on the trip to Dallas, plaintiff in his petition alleged that the claim was for delay, inconvenience and worry, and on trial said he had been delayed about twelve hours which prevented him from keeping some business appointment and that his hotel bill was in excess of fifty dollars, the amount claimed, but it was not shown that defendant had undertaken to make the repairs in contemplation of plaintiff’s using the car in his business or of his driving the car to Dallas, and we are of the opinion that, it not being shown that defendant had undertaken the work of repairing the car in contemplation that it would be used by plaintiff in his business or in making a trip to . Dallas, the damage claimed is too remote. (Cusachs vs. Sewerage & Water Board, 116 La. 510, 40 So. 855.)

On the claim for the return of the amount which had been paid on the note, plaintiff in his petition alleged that the note had been collected through his sister on representations which were not true; and, while there was not any evidence offered in support of the allegations, but assuming that the payment having been made through plaintiff’s agent, was made through mistake and that plaintiff could without showing error recover the amount paid on the note, it would be essential that he should establish at least that the note was without consideration, or that by reason of the improper manner in which defendant had repaired the car, that plaintiff had not received any benefit from the purchase of the parts and work done in installing such parts, for which the note was given.

There was a consideration for the note and the evidence establishing that plaintiff used the car for a period of more than two months after the parts were purchased and installed, it cannot be said that plaintiff did not get some benefit from the purchase and work done in installing the parts, although it appears that plaintiff may not have received the full benefit anticipated, as the evidence indicates that some of the parts were installed by defendant in the cylinder block and could not be used in the cylinder block installed by plaintiff.

If the action to recover the amount paid is considered under the provision of law that, “He who has paid through mistake, believing himself to be a debtor, may reclaim what he has paid,” (Art. 2302, C. C.) it cannot be said that plaintiff was not a debtor of defendant, even if the note is ignored and the matter considered solely with reference to the benefits received, plaintiff could not recover as the evidence does not show that he did not receive any benefit, but on the contrary, shows that he did receive a benefit by the use of the parts for a period of two months, and he will continue to receive the benefit under the allowance made in the judgment for such parts installed by plaintiff at the time he installed another cylinder block.

It is therefore ordered that the judgment be amended by reducing the amount of four hundred thirty-three and 16/100 dollars to two hundred forty-six and 10/100 dollars; and, as thus amended, the judgment is affirmed, plaintiff to pay the cost of appeal.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 472
    First Circuit
    HANNAGRIFF v. KING
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    Bascom D. Talley, of Bogalusa, and Miller & Richardson, of Bogalusa, attorneys for plaintiff, appellee.
    Brock and Carter, of Franklinton, attorneys for defendant, appellant.
   ELLIOTT, J.

L. M. Hannagriff moves to dismiss this appeal on the ground that the return day fixed for the appeal was less than 15 days.

The order granting the appeal was signed on March 5, 1929, and the appeal was made returnable on or before March 15, 1929. The time for which appeals shall be made returnable is fixed by Act No. 106 of 1908. The rules of practice regulating appeals to the Supreme Court apply to appeals to this court for the present. Const. 1921, art. 7, sec. 27.

Under the law, Code Prac. art. 898, and Act No. 45 of 1870, sec. 2, the alleged cause is not sufficient to justify the dismissal of the appeal, except' when the fault in the matter is imputable to the plaintiff.

The Supreme Court has held in various cases that, when the court fixes a day for the return of an appeal sooner than the law directs, the fault is that of the court, and has always refused to dismiss appeals on account of the fault of the court. Pearce vs. State, 49 La. Ann. 643, 21 So. 737; Salles vs. Jacquet, 106 La. 645, 31 So. 153; Orleans & J. R. Co. vs. International Const. Co., 113 La. 409, 37 So. 10; Hays vs. Mayer, 117 La. 1067, 42 So. 505; Dobyns vs. Yazoo & M. V. R. Co., 119 La. 72, 43 So. 934; Dilzell Engineering & Construction Co. vs. Lehmann, 120 La. 273, 45 So. 138; Allen vs. Henley, 130 La. 861, 58 So. 688; Hirst vs. Xeter Realty, 138 La. 398, 70 So. 339; Alexandria & W. Ry. Co. vs. Railroad Commission, 143 La. 1068, 79 So. 863.

The motion to dismiss is overruled.

The plaintiff, L. M. Hannagriff, brought suit against the defendant, King, in the city court of Bogalusa for $247.99 on an account, accompanying his suit by a writ of attachment. He recovered final judgment against King for the amount claimed by default. The attachment not having resulted in payment, a writ of fieri facias issued on the judgment under which defendant’s household goods were seized and held to satisfy the judgment, on the ground that the judgment debtor had been caught in the act of leaving the state. Other creditors intervened, with the result that the seized household goods were released to King upon his paying into the court the sum of $145; but, others having claims on the money superior to Hannagriff, he failed to get anything due on his judgment. The creditors, including Hannagriff, agreed not to again seize defendant’s household goods, and he moved them out of the state.

The defendant, King, was out of the state at the time his household goods were seized, but came back in order to arrange for their release. After he had paid the $145, he was getting ready to leave the state again when the plaintiff, by petition in the city court in which he had obtained judgment, alleged and charged under oath that the said King, being then within the jurisdiction of the court, was about to depart from the state permanently, without leaving in it sufficient property to pay his claim.

The affidavit contains all the essential requirements for the arrest of a debtor in conformity with Code Prac. art. 214, etc., and Rev. St. 1870, sec. 85 et seq.

The petition for arrest alleged that said King had money and property in his possession and under his control sufficient to pay him, and that said King was in the act of leaving the state for the purpose of defrauding him. He prayed that said King be arrested and held to give bond to appear for trial and to pay such judgment as might be rendered against him. The writ of arrest issued, and King, upon being arrested, appeared and filed a motion to dissolve the writ. The motion was overruled. He then filed an answer denying plaintiff’s charges against him. He further alleged that the writ had issued on a judgment which had become final and no appeal was taken, and contended that he could not be arrested on such cause.

His answer contains other averments, but, on the trial of the case, the issues that seemed important were the question of fraud, and. whether plaintiff was attempting to leave the state for the purpose of defrauding the plaintiff, and whether he could be arrested and held to give bond to pay a judgment that had already become final.

The defendant urges that the writ in this case is nothing less than a capias ad satisfaciendum abolished by the Legislature in 1840; that his arrest is therefore illegal, null, and void — citing Thornhill vs. Christmas, 10 Rob. 543.

The case cited is not an authority against the proceedings taken herein against the defendant, which have for their object to compel him to either pay Hannagriff or to make a surrender of his property. The procedure is in conformity with Code Prac. art. 210 et seq., and Rev. St. 1870, sec. 85 et seq.; Anderson vs. Brinkley, 1 La. Ann. 126; Gottschalk vs. Meyer, 28 La. Ann. 885; State ex rel. Wung Chung vs. Civil Sheriff of Orleans Parish, 31 La. Ann. 799; Mayeski vs. Creditors, 40 La. Ann. 94, 4 So. 9; State vs. McCarroll, 138 La. 454, 70 So. 448.

The lower court compelled defendant to give bond as required by Code Prac. art. 219.

As for defendant’s intent and purpose, plaintiff’s allegations against him seem to be established. And it further appears that he really has property and money in his possession and under his control sufficient to pay the plaintiff.

The judgment appealed from appears to be correct.

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

MOUTON, J., not participating.


author: LECHE, J.

text:
    No. 474
    First Circuit
    FLANN v. HOUSE
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    B. W. Miller, of Bogalusa, and Bascom D. Talley, of Bogalusa, attorneys for plaintiff, appellee.
    Ott & Rich, of Bogalusa, attorneys for defendant, appellant.
   LECHE, J.

Defendant contracted with plaintiff to transport by automobile truck a load of household goods and furniture from New Orleans to Bogalusa, La. While the truck, loaded with the furniture, was being driven from New Orleans to Bogalusa, it capsized on the public highway. Some of the furniture was damaged and some of it was broken beyond repair. The present suit is to recover the amount of the loss sustained by plaintiff.

While defendant may not be a public common carrier, in the sense in which that term is applied to the railroads of the country, his obligations under the contract into which he entered, in the absence of express limitations or restrictions, must be presumed to be the same, and there is no reason in law or logic why they should not be. Civil Code, art. 2752. He is responsible for the safe transportation of the commodity which he has assumed to carry, and is bound to make delivery thereof in the same apparent good order and condition, in consideration of the transportation charges which he has agreed to accept for his services. Of this there can be no doubt.

It is not questioned that the truck was either overloaded or improperly loaded, and we find no difficulty in reaching the conclusion that in either event the fault was that of the defendant. The loading was done under the supervision and by the defendant’s employee. He must be presumed to know exactly the weight which the truck could safely carry and, with greater reason, to know how to load household goods thereon. To say that plaintiff’s wife urged defendant’s employee either to overload or to improperly load the truck only shows an attempt to shift a responsibility, which defendant knew rested entirely upon himself.

It is admittedly difficult, if not impossible, to say exactly what plaintiff’s loss amounted to, in dollars and cents. It is said that the furniture was not of the most expensive kind, but nevertheless it was good enough to satisfy the wants and conveniences of the plaintiff, and to him was as serviceable and useful as if it had been of the most ornamental nature. So that its value to plaintiff, just like wearing apparel that has been used, is not to be limited to its marketable value in the estimation of third persons, but should be judged by an estimate based upon the price of replacement for new articles of similar character.

Some of the articles might have been repaired, but it is not conceivable that they could have been restored to their original condition. Other articles, notably the sound reproducing machine and the sewing machine, were beyond repair.

The trial judge found, after due consideration of the testimony, that plaintiff was entitled to recover $350, less the freight charge of $25, and we see no reason to change that finding.

It appears to be fair, and for that reason his judgment is affirmed.

MOUTON, J., not participating.


text:
    No. 484
    First Circuit
    CITIZENS NATIONAL BANK OF HAMMOND v. KREKO ET AL.
    (June 28, 1929. Opinion and Decree.)
    (October 10, 1929. Rehearing Refused.)
    J. J. Jackson, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendants, appellees.
   ELLIOTT, J.

Paul Kreko and Mike Nagy, defendants-appellees, move to dismiss the appeal herein on the ground that no citation of appeal has issued to or been served on them. The suit was instituted and put at issue in the district court, parish of Livingston, but the minutes show an agreement, whereby it was ordered to be tried in the City Court at Hammond, Louisiana.

Hammond is not situated in the parish of Livingston, but is in the same judicial district. It is not a parish seat, consequently the provision in the Code of Practice, art. 543 (amended Act 267 of 1916), applying when judgments are rendered in open court in a parish in a judicial district different from the one in which the case was tried do not govern, nor have bearing on the question raised by the motion to dismiss. The fact that Judge Tycer tried the case at Hammond, rendered the judgment and granted the order for the appeal, which it is moved to dismiss, shows that the parties and the court merely intended to take the testimony at Hammond, and that it was not their purpose to transfer the case to the city court of that place. It is evident that the judgment appealed from was rendered and signed at Hammond on December 15, 1928. It is equally as evident that the order granting this appeal, written underneath the judgment and on the same sheet of paper, signed the same day and at the same place, was moved for and granted there and in chambers.

The plaintiff in moving for the appeal, did not pray for and the court did not order, that the appellees be cited, and the record does not indicate that it was done. The Code of Practice, art. 573 (amended Act 49 of 1871), provides that appeals may be taken in two ways. The Act 94 of 1898, sec. 2, provides the course to be followed when cases are decided in chamhers. This act, however, does not dispense with the necessity for citing the appellee, to answer the appeal, as provided for and required by the Code Practice, arts. 581, 582, 583, etc. But a motion for an appeal made in chambers, is not the same thing as praying for it by petition. The mover must pray that the appellee be cited and the court acting in chambers must order that it be done. If it is not done, then the failure to cite is not attributable to the clerk of court, but to the fault and neglect of the appellant himself. And when the fault and neglect is attributable to the appellant himself, as appears to be the case here, the appeal, on motion of the appellees will be dismissed.

McCutchen et al. vs. Hudson, 132 La. 177, 61 So. 157; McCaw vs. O’Beirne, 124 La. 989, 50 So. 819; Frederick vs. Marx Picture Frame Co., 127 La. 149, 53 So. 474; Comire vs. Schiro Amusement Co., 6 Ct. of App. 441; see also Opelousas Finance Co. vs. Ross, 7 Ct. of App. 425.

For the reasons stated the motion to dismiss herein will prevail. Appeal dismissed.


text:
    No. 501
    First Circuit
    CUTRER ET AL. v. DYSON
    (October 10, 1929. Opinion and Decree.)
    Amos L. Ponder, of Amite, attorney for plaintiffs, appellees.
    S. S. Reid, of Amite, attorney for defendant, appellant.
   LECHE, J.

The plaintiffs, S. M. Cutrer, R. H. Varnado and P. C. Thompson each own adjoining tracts of land situated in the northern part of the parish of Tangipahoa, which tracts are, each and all, bounded on the south by lands of A. M. 'Dyson, defendant. They have instituted the present suit in order to obtain a judicial fixing of the' southern limits of their lands and to locate the prolonged line which separates them from the lands of the defendant.

The trial court acting in accordance with the provisions of the Civil Code, appointed a surveyor to trace and mark the line in question, and the present appeal is by defendant who opposes the homologation of the surveyor’s report.

It appears that the land of S. M. Cutrer which is in section 2 of T. 1 S., R. 7 E., and the lands of Varnado and Thompson which are in section 53 of the same township and range, are all bounded on the south by a line which forms the northern boundary of section 55, also in the same township and range in which are situated the lands of Dyson, the defendant. That the lands of defendant extend along this line and are contiguous to and south of the three tracts of the plaintiffs. The surveyor appointed by the court proceeded then to locate the line forming the northern limit of section 55 and at the same time forming the southern limits of sections 53 and 2. He found unmistakable evidence showing the northwest corner of section 53 and following the courses and measuring the distances shown by the field notes from the United States Government, he discovered that two lines had heretofore been run to locate the northern boundary line of section 55, which line is also the southern boundary of sections 2 and 53. One survey was made by Troskolowsky and the other by Hepburn. There is a distance of approximately forty-seven hundredths of a chain between the courses of the lines drawn by these two surveyors at the southwest corner of section 53. Hepburn found this corner to be 79.15 chains from the Louisiana-Mississippi state line, on a course of N. 12 degrees E., and Troskolowsky found it on the same course at 79.62 chains. The surveyor appointed by the court, following the same course, found the corner to be 79.94 chains from the Louisiana-Mississippi boundary line. He says he found at this point remnants of an old fence, which in his opinion is the real location of the line in dispute.

The testimony by witnesses familiar with the locus, shows that the old fence, mentioned by the surveyor had been at the same place as a separation between the lands of plaintiffs and that of defendant for a number oE years, far in excess of thirty.

An ex parte survey made recently, led defendant to build a new partition fence between himself and plaintiffs on the line originally located by Troskolowsky and the building of that fence is what instigated the institution of the present suit.

There is no reason why the court should attempt to determine the proper location of the northern boundary line of section 55, inasmuch as the plea of prescription advanced by plaintiffs is established by a preponderance of the testimony and must be maintained in obedience to the ruling of the Supreme Court in the case of Opdenweyer vs. Brown, 155 La. 617, 99 So. 482.

The judgment of the district court is therefore affirmed.


text:
    No. 503
    First Circuit
    PENNIMAN v. SPENCER
    (October 10, 1929. Opinion and Decree.)

      A. W. Spiller, of Hammond, attorney for plaintiff, appellee.
    Rownd & Warner, of Hammond, attorneys for defendant, appellant.
   ELLIOTT, J.

Fred A. Penniman claims of L. D. Spencer $700 in damages for having started a grass fire on his property and negligently allowed it to spread so that sparks therefrom set fire to plaintiff’s barn, which was thereby destroyed, together with a wagon, a quantity of hay, some lumber and tools stored therein, and some fruit trees growing near-by.

Defendant denied responsibility for plaintiff’s loss. From a judgment in favor of the plaintiff for $480 defendant appealed.

The evidence shows that defendant started a fire in the grass on his premises and negligently allowed it to spread so that sparks therefrom caught and set fire to the roof on plaintiff’s barn, destroying the barn and its contents and killing some plum trees growing near-by.

Nobody saw the sparks fall on the roof of the barn, hut that does not render the proof as to the origin of the fire insufficient, under the facts and circumstances of this case.

Plaintiff lost his barn and its contents as a result of the fire started by defendant. Castille vs. Cormier, 144 La. 640, 81 So. 210; Suikart vs. Yazoo & Miss. Valley R. Co., 148 La. 349, 86 So. 894; Haas vs. Hines, 150 La. 599, 91 So. 58. The theories advanced to the contrary are not tenable.

The barn was built some 25 or 30 years ago. The roof had about served its time, but the lumber of which the structure had been built was better than can be easily obtained today.

The lower court allowed $300 on account of the barn; $170 on account of the wagon, hay, lumber and tools, and $10 on account of the plum trees; a total of $480.

The plaintiff answering defendant’s appeal prays that the judgment be increased to $700; but the amount allowed in the lower court appears to us to be the proper amount to allow on account of plaintiff’s loss.

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


text:
    No. 458
    First Circuit
    HENNESSY v. DAIGLE
    (October 10, 1929. Opinion and Decree.)

      Borron & Johnson, of Baton Rouge, attorneys for plaintiff, appellant.
    Dupont & Dupont, of Plaquemine, attorneys for defendant, appellee.
   ELLIOTT, J.

In a collision on the Jefferson Highway between Kirby H. Hennessy, while riding ' a motorcycle, and Eugene Daigle, while driving his automobile, occurring on November 7, 1927, in the Parish of West Baton Rouge, the plaintiff Hennessy was badly injured. His left leg was broken above the knee. His left ankle was also badly injured, the result being that his left leg will always be shorter than the other. The plaintiff has endured great pain and suffering. He was confined to his bed for three or four months, but was able after four or five months to get about on crutches. He will be crippled for the balance of his life as a result of his injuries.

The plaintiff coming east toward Port Allen was meeting a wagon going west loaded high with moss, pulled by two mules and driven by a negro man named George Green.

The defendant going west toward Rose-dale was at the same time overtaking the wagon.

The plaintiff alleges that the defendant, driving his automobile on the north, which was defendant’s right side of the road going west, came up and remained behind the wagon as petitioner approached it, and as petitioner proceeded to pass the wagon, defendant suddenly, carelessly, recklessly and without warning drove his automobile to the left, which was to the south side of the road, and the wrong side for the defendant in the direction he was going, in an attempt to pass between the wagon and petitioner. That there was not space enough between petitioner and the wagon for defendant to pass, and he therefore struck and injured petitioner in his effort to do so. The plaintiff claims of defend- . ant $11,279 in damages on said account.

The defendant filed an exception of no cause or right of action to plaintiff’s demand, which beiiig overruled, he answered, denying plaintiff’s allegations and alleging that he had passed the wagon 30 or 40 yards at the time of the accident, and that he was in no way responsible for the collision. He alleges that the accident was due to the negligence, carelessness and recklessness of the plaintiff. That plaintiff was driving on the north side of the road at an excessive rate of speed, in loose gravel, and struck defendant. • The north side of the road was the left and wrong side for plaintiff to be on in the direction he was going,

The plaintiff has appealed from a judgment rejecting his demand.

The exception of no cause or right of action was not urged in this court and will be regarded as abandoned.

The plaintiff testifies that he was riding his motorcycle at about 26 miles an hour on the south side, which was the right side for him in the direction he was coming. That he had met and was (passing the wagon in question when Mr. Daigle came suddenly from behind and attempted to pass it on the same side and at the same time with himself. That there was not room between plaintiff and the wagon for defendant to pass between them, and that defendant, in his effort to do so, struck plaintiff and injured him as alleged in his petition.

The plaintiff, asked if he had done anything to avert an accident when he saw Mr. Daigle coming around the wagon in an effort to pass it, said that when he saw him he realized immediately that it would be á close call for defendant to get by him, if he could get by, and having such a little time to think, he pulled further over towards the ditch, but defendant struck him before he could get to it.

“Q. Now, when you started to -pass this wagon how far had you gotten along the side of the wagon when you first saw defendant’s automobile turn to the left and come around from behind the wagon in an effort to pass it?
“A. I was right about the front wheel of the wagon, just in front of the front wheel, right about even with the back end of the team.”

Further testifying, he said when he saw defendant coming from around behind the wagon, he put on his brakes but could not stop, as it occurred in a second’s time, but he checked his speed and pulled over close to the ditch in order to give defendant a chance to get as far over toward the wagon as he could. In another part of his testimony he states that he was right even with the front wheel of the wagon and team at the time the accident happened. In another place he says:

“Q. Who reached the wagon first, you or Mr. Daigle?
“A. Well, I reached the wagon first, because I was half way past the wagon before he came from behind it.”

He further states that he saw the wagon about 100 yards distant coming meeting him, and that there was an automobile coming behind it at about the same distance that he was from it in front.

R. J. Torres, witness for plaintiff, driving an oil truck coming east on the highway, reached the scene about 16 minutes after the collision had occurred, being the first person- to arrive. He did not see the occurrence, but found plaintiff lying in the ditch, or close to the edge of it, and on the right-hand side of the road going east. Mr. Daigle, the defendant, and Mr. Himel were also there with the plaintiff at the time. He was asked:

“Q. Did Mr. Daigle say anything to you with reference to how the accident happened?
“A. Well, he said he was passing a load of hay at the time.
“Q. Is that all he said?
“A. Well, he said he saw this man and he figured that he had enough space to pass between the wagon and the motorcycle.”

In another place:

“Q. Now, just state exactly what Mr. Daigle said to you about how the accident occurred?
“A. I asked him how it happened and he said that he was coming right back of the wagon and was passing the wagon as a motorcycle drove by.
“Q. Did you testify that he told you that he thought there was room between him and the wagon for the motorcycle to pass?
“A. He said he figured the man had room to pass behind.”

He was asked to repeat his statement, and said, that he drove up and saw that there had been an accident; that he asked Mr. Daigle how it happened, and that Mr. Daigle said that a loaded wagon was passing ahead of him, and that he was passing the wagon when the motorcycle drove by.

Asked to again repeat what Mr. Daigle had said, he stated that Mr. Daigle said, “There was a wagon, loaded passing ahead of him and that he was passing the wagon when he met the motorcycle, and the accident happened.”

He declared that Mr. Daigle had not told him that he was in front of and had already passed the wagon when he met the motorcycle.

The testimony of Mr. Torres as to the admissions of the defendant, corroborates plaintiff. And the fact that plaintiff was lying in or on the edge of the ditch on the right-hand side of the road, in the direction he was going, is well established.

The testimony of the plaintiff and defendant is in direct conflict.

The defendant Daigle testifies that he was driving on the right-hand side of the highway, going west, at the rate of 20 or 25 miles an hour. That coming up behind the wagon he slowed down and pulled to the left side to look ahead of it and see whether there was an automobile coming within a distance in which he would have time to go around it, and not seeing anything in front of him he pulled around the team and the wagon. That he then saw the motorcycle coming on his (meaning plaintiff’s) left side of the road, which was the wrong side for the plaintiff in the direction he was travelling. That plaintiff kept coming, and starting to come around, hooked on his, defendant’s, left fender, and trying at the same time to turn to his right, he lost control of his wheel, which cut around quick to his left, and then swerved quickly back to his right, struck defendant.

Further questioned:

“Q. Well, about how far in front of his wagon was your automobile?
“A. Probably two or three lengths of the automobile, probably 25 to 40 yards.
“Q. What side of the road were you driving your car on?
“A. On my right-hand side. Of course when I went around the wagon I had to go to the center of the gravel road, but I was back on my right-hand side.
“Q. At the moment of the collision which side were you on?
“A. On my right-hand side.”

Cross-examined:

“Q. Now, when you first saw Hennessy coming, as you say, on his left-hand side of the road, had you. at that time completely passed the wagon?
“A. Yes, sir.”

In another place:

“Q. I mean, until after you had completely passed it; you did not see Mr. Hennessy until you had gotten completely by the moss wagon?
“A. I saw him when I got right even with the moss wagon, and that is what made me pull short back to my right.”

Questioned further, he repeated that the accident happened about 40 yards ahead of the wagon, and held to it throughout his examination.

The plaintiff knew that the negro driver, George Green, had seen the accident. He called on him before the trial and asked him about the case. The driver, however, was placed on the stand by the defendant and testified that he was looking right at plaintiff and defendant at the time. The driver of the wagon corroborates the defendant. He testified that the collision took place 45 or 50 yards in front of him. That the plaintiff seemed to lose control of the front wheel of his motorcycle and went right into Mr. Daigle’s automobile. That the motorcycle started to cross over from the left to the right side of the road, got into the loose gravel, plaintiff lost control and hit Mr. Daigle.

Asked if the motorcycle and defendant’s car were trying to pass each other by the side of the wagon at the time the accident happened, he answered “No.” Asked if he was positive and he said “Yes.”

The negro driver also says that plaintiff was on the same side of the road that his wagon was on; that his wagon was straight behind Mr. Daigle’s car when the accident happened, corroborating defendant that plaintiff was driving at the time on the wrong side of the road.

He stated on cross-examination:

“Q. Now, what did you do after the accident occurred, did you stop your mules?
“A. Yes, sir. After the accident happened I drove up to where it was and stopped about as far as from me as to over there (indicating).”

Then he drove his wagon a little in front of the yellow car and stopped there a little bit, then he drove off.

In speaking of the yellow car, the witness had reference to defendant’s .car.

Defendant says that he passed on some 25 or 30 feet beyond the place of the accident before he stopped. It therefore results that the witness Green must have driven his wagon past the plaintiff lying on the ground before he stopped; and that he then drove a little further and stopped again.

The witness Green spoke of having looked back and seen the plaintiff, etc. He was cross-examined closely, to have him admit that he was looking back when the collision took place. Plaintiff argues, from the fact that the witness looked back and saw the plaintiff, that the accident had happened while the plaintiff was passing his wagon, as the plaintiff claims that he was. But after a careful examination of all the witness says on the subject we conclude that plaintiff’s contention is not supported by anything that this witness says. The statement of the witness is plain, that the impact took place in front of him; that he then went on forward, pulling his team to the side of the road, and drove past the plaintiff lying on the ground. That after passing him he stopped and looked back. He stopped the first .time and looked back before he had gotten to the place where defendant had stopped his car. He then drove past defendant’s car and stopped again, looking back at plaintiff each time.

It is worthy of notice that if the impact had taken place right by the side of the wagon and mules, as contended for by the plaintiff, there would likely have been some testimony on the part of the driver of the wagon, about what the mules did. A sudden collision between an automobile and a motor bicycle right at the side of a mule team would have almost surely startled them into an almost instantaneous jump forward and to the side, away from the impact and the driver seated on top of the load of moss some eight or nine feet from the ground, would have had something to say about it in his testimony. Nothing is said about the mules having been frightened by the impact, consequently it seems probable that no impact took place right at the side of the mule wagon, as claimed by the plaintiff, else there would have been something said about what the mules did.

The probability lessens the weight of the testimony of Mr. Torres in that part in which he repeats the statement made to him by Mr. Daigle. It is a well settled rule of evidence that the correct repetition of the verbal statements of others, made some eight or nine months before, without having made exact memoranda as to same at the time, is very difficult to do. It can seldom be done without the memory varying in regard to it in some respects.

The evidence shows that there was a man named Himel and a lady or ladies in the car with defendant at the time of the collision, and that Mr. Himel was in the courtroom during the trial. The defendant did not call Mr. Himel nor any of the ladies as witnesses. Plaintiff urges this fact as a presumption that defendant did not call them because their testimony would have supported the plaintiff’s contentions, if it had been done. If Mr. Himel or any of the occupants not called, had been driving the car, the circumstances would have more weight. But according to the evidence, Mr. Daigle was driving himself.

The presumption contended for is created, where it appears that an effort is being made, by not calling witnesses present or accessible to the party, to conceal some fact that they know better or more about than the witness or witnesses produced. See:

Geddes & Moss vs. Simkins, 4 La. App. 125;

Day vs. R. R., 35 La. Ann. 694;

Ketchum vs. R. R., 38 La. Ann. 777;

Peyton vs. R. R., 41 La. Ann. 861 (p. 866), 6 So. 690;

Peetz vs. R. R. 42 La. Ann. 541, 7 So. 688.

Pruyn vs. Sheriff, 51 La. Ann. 320, 25 So. 125;

Rubenstein vs. Files, 146 La. 727, 84 So. 33;

Toca vs. Rozaz, 152 La. 317, 93 So. 108;

The rule is explained in:

Peetz vs. St. Charles St. R. Co., 42 La. Ann. 541, 7 So. 668, and Baptiste vs. Fourshy, 49 La. Ann. 1627, 22 So. 833;

Greenleaf, 12th Ed., Vol. I, Section 737;

Jones on Evidence, Section 19, etc.

R. C. L., Vol. 10, Subject: Evidence, Section 32, etc., pp. 884 to 889.

The plaintiff could have .called Mr. Himel in rebuttal if he had wanted to.

As for the ladies, it was not shown where they were at the time of the trial. And defendant’s failure to place Mr. Himel on the stand does not make substantive proof going to show fault or neglect on his part.

The burden of proof was upon the plaintiff under the law, Civil Code, Arts. 2315 and 2316, to show that he was injured as a result of the fault and negligence of the defendant.

We have taken defendant’s failure in the matter mentioned into account in summing up the case, but after everything has been weighed and considered it still remains that the' preponderance of the substantive proof is, that defendant had passed and gotten by the wagon and team when he met and collided with the plaintiff.

Plaintiff’s case is based on the alleged fault of the defendant in trying to pass between the wagon and himself, after plaintiff had met the wagon and commenced to pass it.

The district court in his reasons for, judgment was of the opinion that the collision “was probably due to carelessness on the part of both plaintiff and defendant.”

After a consideration of the entire case it does not seem to us that the plaintiff has established that his injury was due to the fault and negligence of defendant, with that reasonable certainty that should exist in the minds of the court, before the responsibility is decreed.

Judgment affirmed. Plaintiff and appellant to pay the costs in both courts.


author: MOUTON, J.

text:
    No. 443
    First Circuit
    BOUDREAUX ET AL. v. MYLES SALT CO., LTD.
    (October 10, 1929. Opinion and Decree.)

      Brumby & Bauer, of Franklin, and Margaret Wooster, of Franklin, attorneys for plaintiffs, appellees.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

Wiley Boudreaux, then aged 24, an employee of defendant company at Weeks Island, Iberia Parish, was killed by accident, July 6, 1927, while performing services in the course of his employment.

This suit is brought for compensation for his death by John Boudreaux and Marguerite Boudreaux, his surviving parents.

His daily wage was $3.75, or $22.50 per week.

The demand is for 65 per cent, of the weekly wages, that is, for $14.62 per week, for a period of 300 weeks.

Judgment was rendered against the defendant company for 65 per cent, of $14 for 300 weeks from which it prosecutes this appeal.

The defendant filed an exception of no cause of action. It is urged in this court but only on the contention that under Act 85 of 1926, which it is contended governed the claim herein made, there was no provision fixing the compensation for dependents when the employee’s injury resulted in death. This court had held that there was a hiatus in that statute in that respect, but the Supreme Court has held otherwise in the case of Bass et al. vs. Weber-King Mfg. Co., 123 So. 112. Hence, the exception, which has been renewed in this court, is overruled.

MERITS

The suit here, as it developed during the trial, is for .partial actual dependency of the plaintiffs on the earnings of their deceased son in the year prior to his demise. In their petition the only allegation in reference to dependency was that the plaintiffs were wholly dependent upon the earnings of deceased at the time of the accident and his death. The testimony offered by plaintiff to establish partial dependency was objected to by defendant, but the objection was referred to the merits. It is contended here that the action for partial and total dependency are distinct and that the same proof would not be required for the two actions; that an exception of vagueness would not lie, as the claim was for total dependency.

The defendant in its answer specifically denied the allegation of total dependency made by plaintiffs as aforesaid. Although we think that in the examination of the issue of total dependency under plaintiffs’ allegation that the issue of partial dependency would, as a consequence, have been unfolded or brought about, we are relieved of the necessity of passing on this point because of the following averment made by defendant in its answer:

(a) “That the plaintiffs and neither of them, were wholly or even partially dependent upon said Wiley Boudreax, their said deceased son, at the time of his said death or at any other prior time and consequently are not entitled to recover compensation on the theory of dependency under the intendment of said Workmen’s Compensation Law.”

This article of the answer is not in any way ambiguous, but is on the contrary, explicit, and clearly opened the door for the reception of evidence as to whether or not plaintiffs were partially dependent on their deceased son, not only at the time of his death, but at any other time prior thereto. If the issue, thus tendered by defendant had been distasteful to plaintiffs, they could have objected to it as they were entitled to all objections of law and fact, replication not being permitted under our practice. Bayly vs. Stacey, 30 La. Ann. 1210.

It does not lie with defendant however to object to the introduction of the proof to establish the partial dependency of the plaintiffs under the pleadings of defendant enlarged by defendant as above pointed out. The evidence was properly referred to the merits and considered.

The next question presented for solution is as to whether plaintiffs were partially dependent on their son at the time of the accident and his death, and the year prior thereto. Sec. 8, par. 2, Act 85 of 1926.

At that time the family of the plaintiffs consisted of plaintiffs, Wiley, the deceased, Stanly, a younger brother, and Zulina, a daughter of about 15 years of age. John Boudreaux, the father, was a carpenter about 50 years old, was affected with asthma, earned $4 a day when he worked and was making $600 or $700 a year. They lived in a modest home near Franklin, costing $500, and on which a debt of $140 was due. The mother attended to the household duties. Stanly, the other boy, was going to school, until about six months before the accident when he got work at the defendant’s salt mine, where Wiley lost his life. Zulina, a mere child, was attending school. The only source of revenue that John Boudreaux had was derived from his daily earnings as a carpenter. This was altogether insufficient to provide for the family. Wiley Boudreaux worked at Weeks Island and came to his father’s home three times a week. Out of his earnings of $22.50 a week, his parents say, he gave his father between $14 and $17 a week. Counsel for defendant contend that the amount so given was in reality for board, and endeavor to bring this case within the ruling of this court in 7 La. App. 444.

In that case the claim was for total dependency and the issues had not been changed to one for partial dependency which is the question presented herein. In the case cited a fixed amount was agreed to between the parties who were brother and sister. We said in that case that besides the other proof shown, it appeared the claimant was unquestionably doing other work for which she must have been receiving remuneration, and that she had failed to establish her demand which was for total dependency.

Here, the relation is not between brother and sister, but is between a child and his parents from which naturally springs more warmth and generosity of sentiment than between brother and sister, which accounts for the liberal contribution made by deceased from his earnings.' The fact that the payments fluctuated between $14 and $17 a week indicates that they were not fixed as they were in the 7 La. Aprp. case, did not bear the ear-marks of regular payments for board, and had rather the character of contribution by a child to the needs of dependent parents. It also appears, that the money contributed by the deceased was pooled in a common fund with the earnings of his father, from which his mother drew enough to pay for her boy’s clothing. If the payments had been for board there would not have been such an arrangement which, in our opinion, indicates that the money so handed over by deceased was used for the family expenses in aid of his dependent parents.

It seems that one Mr. Rogers obtained a statement from plaintiff John Boudreaux which contained a, declaration that he was not dependent on Wiley for support. The proof shows that John Boudreaux is illiterate and that the statement was read to him by Rogers. He said he never would have signed had he known of that declaration. His purpose in signing, he says, was to obtain money on insurance policies in which he had been named a beneficiary by his deceased son.

Stanly also signed a statement and admits his signature thereto. He says Rogers told him what to write, that he wrote it and signed. He denies he made the statement contained therein, to the effect that his parents were not dependent on Wiley; that that declaration is false, that he told Rogers what he read was true, but that he must have skipped that declaration.

Another witness, this one for defendant, was asked if he had not made the statement that Wiley’s parents or relations were not dependent on Wiley for support. He denied that he had.

The testimony of the witnesses above referred to does not sustain the contention that such a statement was made.

Rogers, who it seems took out these declarations, did not testify in the case and no proof was tendered showing that his whereabouts were unknown, or that his evidence was for any reason unobtainable.

The rule is that if defendant fails to testify to throw light upon an issue necessary to his defense, the presumption is raised that the facts, as he would have them, do not exist. Bastrop State Bank vs. Levy, 106 La. 586, 31 So. 164, 165.

In that case the court said:

“Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.”

In a much more recent case, the court said:

“Defendant’s failure to testify, warrants the inference that he could not do so without strengthening plaintiff’s case.”

Logan vs. Walker, 152 La. 880, 94 So. 430.

The ruling in the later case is much stronger than the former ruling where it says that the failure of defendant to testify fortifies plaintiff’s case.

It is true, it is a witness for defendant that failed to testify in reference to these statements hut the rule is equally applicable because it was the duty of defendant to have Rogers testify in reference to these statements which were written by him or under his dictation so that the court might as was said in Bastrop State Bank vs. Levy, 106 La. 586, 31 So. 164, be assisted in the “elucidation of the truth.”

The proof, we find, shows that plaintiffs were partially dependent’ on the deceased (luring the year prior to the accident and his death.

The last contention urged by defendant is that if the dependency existed, the condition of dependency of the plaintiffs has ceased, and that compensation under sec. 8, par. 2(f) of Act 85 of 1926, should likewise terminate.

This question involves the knotty problem in the case as we have not been favored, nor are we aware of any adjudications on this proposition, one way or the other, and must dispose of it according to our own interpretation of the language and purpose of the statute.

The contention that the condition of dependency has ceased is grounded on the fact that plaintiffs have received as beneficiaries of their deceased son, since his death, the sum of $3,250 on some insurance policies. The revenue that could be obtained yearly from this sum of money by plaintiff is to be figured upon to ascertain if their condition of dependency no longer exists. The evidence shows that the least contribution the deceased made was $14 a week, which amounted monthly to $56, and annually to not less than $672; and it was shown that this total amount, thus contributed, pooled with the $600 or $700 annually, earned by the father, barely sufficed for the legitimate necessities or expenses of the family. Their “condition of dependency” therefore existed notwithstanding the combined contributions of the father and deceased son, and to which the father contributed $672 yearly as his share.

Now, placing the $3,250 which plaintiff received from the insurance policies at 8 per cent, per annum interest which would be a fair investment, the revenue from that source would total, annually, the sum of $260. If the $672 furnished by the deceased barely sufficed for the legitimate expenses of the family, the $260 for interest, of necessity, would fall far short of the requirements, and it cannot therefore be said that the condition of dependency has ceased.

In Workmen’s Compensation by Boyd, of the Toledo Bar, vol. 2, sec. 496, is found a disquisition on the British Compensation Act. Although the compensation law of England has been adopted only by a few of the American States, we think, although we may be in error on this subject, that the compensation statutes, we now have, trace their source or origin to the English statutes.

In commenting on the subject under discussion, the author refers to an authority in which the following was held:

“Money which comes to a dependent on the death of a workman does not affect the question of whether or not he is dependent upon his earnings at the time of the death of the workman. What the law intends is the condition immediately before the death of the workman.”

It is shown by the evidence that immediately preceding and at the time of Wileys’ death, that his parents were in a condition of dependency. The insurance money which they have received since cannot therefore affect their right of recovery under the doctrine above. reproduced, and which, we think, applies to the issue herein presented.

We find, as hereinabove stated, that in reality their condition of dependency has not ceased as contended for by defendant, and the fact that they have been, since their son’s death, the recipients of the insurance money as his beneficiaries, has not changed the situation. They are for the foregoing reasons entitled to judgment as was decreed below.


author: ELLIOTT, J. LECHE, J.,

text:
    No. 453
    First Circuit
    WHIPPLE v. LIRETTE
    (October 10, 1929. Opinion and Decree.)
    Caillouet & Caillouet, of Houma, attorneys for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   ELLIOTT, J.

Mrs. Seraline Palgout Whipple, wife of Walter Whipple, was knocked down and badly injured by an automobile driven by Melvin Lirette, unomancipated minor son of the defendant, Emile Lirette, residing wth him. She claims damages of Emile Lirette on account of her injuries. An exception of no cause of action, based on the alleged fact that her alleged injuries were caused by the negligence of his unemancipated minor son was overruled. Defendant urges the exception in this court.

The exception was iproperly overruled. The law makes the father responsible for the damages occasioned by the fault of his unemancipated son residing with him. C. C. Art. 2318. Marionneaux, tutrix vs. Bringier, 35 La. Ann. 13; Mullis vs. Blaise, 37 La. Ann. 92; Rush vs. Town of Farmerville et al., 156 La. 857, 101 So. 243; Allen vs. Currie et al., 8 La. App. 30.

The plaintiff alleges that she was injured as a result of the grossly negligent and wantonly reckless driving of defendant’s son.

Defendant denies the negligence and recklessness, etc., alleged against his son. He avers that his son saw the. headlights on the Yillavasso car, upon crossing the interco.? stal canal at Bourg, 250 feet below the Whipple residence, but thought it was coming toward him. And as it was pn the wrong side of the road, he expected every moment to see it turn to the other side. That his son continued his course until it was apparent that unless one of the cars deviated from its course, a head-on collision was inevitable. That confronted with the exigencies of the situation his son took the ditch on his right rather than violate the rules of the road by passing the apparently approaching car on the left.

That his son discovered after the accident, that the apparently approaching car was in reality stopped in front of the Whipple residence on the wrong side of the road for its parking, and that the occupants were in conversation with Mrs. Whipple at the moment of -the acoidpn* That the course adopted by his son in the effort to avoid a collision was a judicious exercise of sound discretion.

The answer does not allege that stand ing on the bridge was an act of negligence on the part of the plaintiff. His conten tion is that his son did not know, and could not have known, when he turned to the right and took the ditch that plaintiff was standing on the bridge which spanned the ditch. That it was not a fault on his part to turn to the right under the circumstances; that such is th« law of the road. That the real cause ol the accident was the car parked on the wrong side of the road, with which his pon had nothing to do.

We do not understand defendant to contend that it would not have been his dut^ t.o turn to his left in order to pass a car that he knew was parked, but that it wa« not his duty to turn to his left in ordet to pass a ear that he supposed was running, coming toward him.

The following facts are admitted, or not denied by the answer, and therefore under the pleading Act 157 of 1912, section 1 (amended Act 27 of 1926) may be regarded as admitted. Other facts stated were established without dispute. The occurrence in question took place after d&yk in front of plaintiff’s residence at abouv. 7 o’clock P. M., on November 1, 1927. Plaintiff’s residence is situated fronting on the left or descending side of the highway which leads from Houma past Bourg and on to Montegut. The highway in question is gravelled in front of her residence to the width of 22 feet. A road drainage ditch approximately 8 feet wide and 3 feet in depth runs in front of her home between her front gate and the highway parallel with the highway. The outer side of the open highway, a strip about two feet in width, next to the ditch is not gravelled.

A foot-way leading from plaintiff’s residence to the highway crosses the intervening ditch by means of a wooden bridge. This bridge was between 8 and 10 feet long and about 3% feet wide. Its end next to the highway rested on the dirt shoulder which formed the bank of the ditch. The plaintiff was not in the road when struck, but was standing on the bridge over the ditch about half way across the ditch talking to Mr. and Mrs. Villavasso and their daughter, who were seated in an automobile headed down the road toward Bourg, which they had stopped on the left or descending side of the road in the direction they were going, and which for them was the wrong side of the road. The front door of their automobile was about two feet from the end of the bridge and close to the outer edge of the gravel. The middle of the automobile was about opposite the bridge, the engine and front part below, and the rear end above it.

Melvin Lirette and three companions were driving up the road. They had just passed Bourg and were going on to Houma. They were therefore going in the opposite direction in which the Villavasso car was headed. The Lirette car was on the right side of the road, the side on which it belonged, in the direction it was going. The road contained a slight curve which commenced about 500 feet below the place in question and extended about the same distance beyond same, which however, did not prevent anybody from seeing the Lirette car that might be coming in the road, unless the party coming had been immediately behind the parked car. Therefore the question is, whether, under the established facts, plaintiff’s injuries may be said to have been the direct and proximate result of the wanton, reckless and careless conduct of defendant’s son, as provided by the law, Civil Code, Art. 2315, etc.

Elliott on Roads and Streets, 3rd Ed., sections 1079-1080, 1081, 1082, pp. 618-619-620-621 has this to say relative to meeting, passing and stopping:

“It is a general rule that one may travel upon any part of highway not occupied at the time by another, but if he meets another traveler whom he desires to pass, or who desires to pass him in either direction, there are certain rights and duties which each must observe in order to avoid a collision.
“The first and most important rule is, that in meeting, each party shall bear or keep to the right. If there is no statute on the subject proof of this custom is not necessary, for the court will take judicial knowledge of it.
“This rule requiring travellers who meet, .to pass to the right, is not an inflexible one, and there may be circumstances requiring one to keep to the left in the particular case. Emergencies may arise where, in order to escape from danger to one’s self, or to prevent injuries to others, it will not only be excusable, but perfectly proper to temporarily- violate the general rule.
“One who violates the law of the road by driving on the wrong side of the way assumes the risk of all such experiments, and must use greater care than if he had kept on the right sid-5 of the road. If a collision takes place the presumption is generally against the party on the wrong side. Especially is this true where the collision takes place in the dark. But the mere fact that one is on the wrong side of the road in violation of the law, gives another no right to neglect all precautions, and if by the exercise of ordinary care the latter might prevent a collision, notwithstanding the fault of the former, but fails to do so, he has no cause to complain. So while the fact that one that is on the wrong side of the highway is to be considered, and may make a prima lacie case of negligence against him, it is not necessarily conclusive.”

Most of the above provisions were quoted approvingly by the Supreme Court in Schick vs. Jenevin, 145 La. 333, 82 So. 360; Potter vs. Glassell, 146 La. 687, 83 So. 898, is to the same effect.

In the recent case óf Mrs. Hazel Kennedy, individually and as tutrix vs. F. M. Opdenweyer, 121 So. 636, this Court recognized the right and the duty of a party j to leave his side of the road and get on the other side, in an emergency made necessary by the wrong driving of another party in order to avoid a collision.

In Thompson on Negligence, Yol. 1, Sections 1286, 1287, pages 1138-1139-1140-1141, the general doctrine is about the same, quoted from the author first mentioned. We will- only excerpt the following:

“But ’ the failure to keep on the right in conformity with this rule is not the criterion of negligence.” In another place it is said to be “not negligence per se, nor does it necessarily make him answerable for damages in case of a collision. But it is a circumstance to go to the jury as evidence of negligence, for there may be circumstances making it excusable and even proper to drive to the left as where a driver having occasion to stop on the left side of the road turns his team in that direction for that purpose.” It depends on the need, purpose, occasion, etc.

In Ruling Case Law, Vol. 13, subject Highway, Section 222, p. 270, that author, recognizing the same general rule on the subject of stopping on the wrong side ' says:

"These rules are however not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them. And one who too closely adheres to such rules when the injury might have been averted by variance therefrom, may be charged with fault. A traveller may not remain stubbornly and doggedly upon the right of the travelled part of the highway and wantonly produce a collision which a slight change of position would have avoided, and to do so will amount to contributory negligence which will preclude a recovery for injuries thereby sustained.
“The exception to the rule of the road depends upon the special circumstances of the case, and in respect to which no general rule can be applied.”

In Blashfield’s Cyclopedia of Automobile Law, Vol. I, Section 18, page 412, it is said that the driver of a vehicle who has drawn up to the curb on the left-hand side is not, while remaining stationary and engaged in conversation with someone on the curb, a traveller, within the meaning of the law which requires travellers meeting each other to turn to the right in order to pass.

In Campbell and Wife vs. Haas, 2 La. App. 753, the collision took place after dark. The plaintiffs alleged that Miss Campbell was standing in the road behind the car which was struck and knocked against her, and that the defendant was driving on the side of the road on which he belonged to be. The syllabus sets forth the majority opinion of the court as follows:

“A petition which states that the automobile of the plaintiff was standing on the left side of the road, with the headlights burning bright, while its tire was being fixed, when the defendant negligently ran into it, killing the plaintiff’s daughter, states a cause of action, as it does not show the plaintiffs to have necessarily been negligent.”

In the Campbell case, the plaintiff’s daughter was the guest of the party driving. It was urged in that case that the defendant could not be supposed to have known that the car in his front was parked. That he had the right to act on the assumption that it was coming towards him, and would in due time turn out, and get on the side on which ii belonged to be.

The Campbell case was before this Court on the merits, 4 La. App. 435, and it was held in a majority opinion that defendant’s driving was negligent ana that he was liable in damages to the parents of the young lady killed as a result of the same.

Under the law of the road and the facts in the present case, the fact that the Villavasso ear was parked on the wrong side of the road, and defendant’s son, turning still further to his right struck plaintiff in his effort to miss it, is not sufficient to exonerate defendant’s son from negligence, nor defendant from liability.

The law of the road, according to which the party driving a vehicle keeps to the right in the direction he is going, is intended to facilitate and make it easier and safer for vehicles meeting, to pass each other in the road. It is not a hard and fast requirement, under which, a party driving' on the right side of the road is justified, upon seeing a vehicle facing and headed toward him stopped on the wrong side of the road, in turning further to the right and out of the road when there is a party standing out of the roadway, near the parked vehicle that he should have seen and would strike by turning out of the road in that direction, the roadway in front of him to the left of the parked car being open and the opening of ample width for him to pass, and no one in sight coming in the road meeting him. He must in such a situation keep in the road.

It is the custom of the road, that if a vehicle approaches another stopped in the road ahead, coming toward him, or headed in the same direction the party is going, such party must temporarily leave his side of the road, if the other side is open and nobody coming on that side will intercept him, and pass the parked vehicle on the side that is open, and then return to the side which custom prescribes. And if the road is not open on either side, a party must stop until it becomes so that he can pass without striking anybody standing where they have a right to be.

Melvin Lirette admits, and the other occupants of his car who were called as witnesses in his behalf, also admit, that the road to the left of the Villavasso car was open; that nobody was in sight coming. That the width of the road to the left of the parked car in the direction in which they were going was fully fifteen feet over and beyond the space occupied by the Villavasso car, and that their car, had it turned to that side would have passed that way without hurting anybody. Mrs. Whipple did not see the approach of the Lirette car. She says:

“I had started to my house; I had gone out on my plank-walk to speak to some friends, Mr. and Mrs. Villavasso, and I was standing on my plank-walk right near the gate and all ap once I heard a noise, and the next I knew, they came and picked me up on the side of the ditch. That is all I know. I didn’t see any car coming, or nothing at all. I just heard that and then I was down in the side of the ditch.”

She further testified without denial on the part of the defendant, that she was standing on the walk or foot bridge at the time she was struck, over about the middle of the ditch.

Mrs. Villavasso, referring to herself, husband and daughter, says that they were seated in their car. That Mrs. Whipple was standing on the bridge talking to them. That the door of their car was about even with the bridge. That she saw defendant’s car coming at a terrific rate of speed and headed directly in front of them. That it came on and hit their tire on the left side, jumped the ditch or into the ditch, hit the bridge Mrs. Whipple was standing on and kept going. Miss Villavasso testified as did her mother, but says in addition that several cars passed them while they were there. That she felt spellbound on seeing the speed at which the oncoming car was approaching them, without slackening, looking as if it was going to hit them.

Melvin Lirette and two of his companions in the car, one of whom was seated with him on the front seat, agree in their statements that they saw the lights of the Villavasso car in front of them when they got on the Bourg bridge. That the lights were then distant from them about an acre; one of them says an arpent, and was on the wrong side of the road. The distance may be estimated at about 210 feet. That they thought it was a car coming, and would move to the right and give them the road. That they didn’t discover that it was parked and not moving until they got within about 20 feet of it. That the brakes were then applied, the car slowed down and turned to the right taking the ditch. That they approached what they supposed was an oncoming car at about 25 or 30 miles an hour. Melvin Lirette’s reasons for not turning to the left of the parked car will best appear from what he himself says:

Cross-examination:

“Q. When you realized it was stopped, then why didn’t you pass on the other side of that car?
“A. I didn’t have to pass. I had to keep to my right.
“Q. Could you have passed on the other side?
"A. I could have passed, yes.
“Q. How could you keep to the right with this car immediately in front of you?
“A. I was supposed to keep to my right.
“Q. How could you, don’t you know that you couldn’t?
“A. He had his bright lights on and I was not supposed to turn to his right.
“Q. But he was parked, he was stopped there.
“A. Yes, when I had to pass.
“Q. When you realized he was stopped right in front of you, how could you keep to the right with him- in front of you?
“A. I took the ditch, I went to the ditch.
“Q. But you could have passed to the other side, there was plenty of room?
“A. Yes.”

Further direct examination:

“Q. Then why did you turn to the right and take the ditch?
“A. That’s what I was supposed to do.
“Q. That was your understanding of the law of the road?
“A. Yes, sir.”

He further testified that he was looking at the ditch when he drove into it, and in one place says that he saw the bridge, but almost immediately afterwards, says that he didn’t see it.

The other two say that they did not see the bridge and that when they got within about 20 feet of the parked car its lights blinded them; that they were not blinded previous to that time.

The speed of the Lirette car can be appreciated by taking its striking power into account. The brakes were applied, say 25 or 30 feet distant from the parked car. It went forward under its brakes and struck the parked car with such force that it exploded its left tire, bent its fender, then struck the bridge on which Mrs. Whipple was standing. It struck and knocked Mrs. Whipple ahead into the ditch about 20 feet distant from the place of impact. It also knocked the bridge, which was a structure about 8 or 10 feet long and about 3% feet wide, composed of two sills, in size about like joists and to which planks were nailed for cover, about 10 feet from the place where it had rested. The car and the bridge went forward together; both fell in .the ditch, the car on top of the bridge.

The car was a Ford sedan, a light make, consequently it must have been running at a terrific speed for it to have struck with such force.

Defendant’s son knew that it was dark and that he was liable at any moment to come to a car stopped on his side of the road, and that whether it was coming toward him, or headed in the opposite direction he was going, that he would have to pass to the left of it if he kept in the road, arid that if somebody else should be coming in the road behind it and about to pass it, that it would be necessary for one of them to stop, and that it might be necessary for him to do so.

He saw the Villavasso car ahead on his side of the road in his immediate front about 210 feet distant and knew that at the speed he was running, that getting to the place where it was, no matter whether it was stopped or running toward him, was a matter of but little more than a second in point of time. The headlights on his own car, as well as those on the parked car, were all showing bright. Therefore, if defendant’s son did not see the open ditch on his immediate right, ábout 8 feet wide and 3 feet deep, the bridge ahead, Mrs. Whipple standing on it, and the open unobstructed roadway ahead to the left of the parked car, he should have done so. It was due to his gross want of care • in driving that he didn’t. The headlights of the car ahead, which he supposed to be coming, were on his side of the road, and was a warning to ' get his own car under control, because he knew that the car might just as well be stopped and therefore could not move out of his way.

But he kept his own car going forward at full speed, taking no precaution, in effect, driving blindly and without power to act intelligently and as the situation ahead required.

The plaintiff was not in his way; she was not. in the road, but was in a ¡place where she had a right to be. If defendant’s son had not turned out of the road on her, she would not have been injured. Defendant’s son knew or should have known, that to turn out of the road to his right, was to turn into the ditch. It was a serious fault and a grave want of care to drive at such a rate of speed and with such little attention to things ahead and which he should have foreseen, that he rendered it impossible for him to do the thing which the exigencies of the case required. It was his want of care in the way stated that resulted in the injury of the plaintiff.

The Act 226 of 1926, in force at the time of the occurrence, has been repealed by Act 297 of 1928.

In Blackburn vs. La. Ry. & Navigation Co., 144 La. 520, 80 So. 708, it was held:

“Railroads can not run their trains through thickly populated towns and cities and by stations and places known to .be frequented by people at such a high speed, that the employees do not see, what by the exercise of ordinary care they should, see, and then escape liability because of inability of employees to stop the train when danger is actually discovered.
“Only such speed of railroad trains should be maintained under such circumstances as will enable trainmen with the light available, whether natural or artificial to see persons or objects on tracks and by the use of modern appliances, to stop and avoid striking, if the necessity should appear to a reasonable mind.”

In Southall vs. Smith, 151 La. 987, 92 So. 402, 403, 27 A. L. R. 1194, the Court said:

“An automobile driver can not put himself in a position where in order to save himself, he must run into somebody else and then plead that he could not help it and is therefore not liable.”

In Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 So. 250, it was said:

“The chauffeur of an automobile truck, driving over that portion of the public highway which is ordinarily used by vehicles going in the opposite direction, must keep a very vigilant watch ahea,d for vehicles and pedestrians. He should signal his approach as a warning, and when it is dark or nearly so, the lights on his vehicle should be burning.
“He should proceed slowly and cautiously and at the first appearance of danger, he should take proper steps to avoid it, and if necessary stop his machine and even his motor when it is necessary and practicable. He will be presumed, in case of accident, to have seen, what he should have seen in the performance of his duty.”

See also Campbell and Wife vs. Haas, 4 La. App. 435; Parlongue vs. Leon, 6 La. App. 18.

It was held in Odom vs. Schmidt, 52 La. Ann. 2129, 28 So. 350, 351:

“It is negligence to drive" into a vehicle while standing still and on the side of the roadway, when there is ample room to pass without colliding with it. If there is not room to pass, it is the duty of the driver of the approaching vehicle to stop and call out to the driver of the other vehicle to move out of the way.”

The latest authors say that when the driver of an automobile is blinded and can not see objects in the road ahead of him, the speed of the car must be so slow, that he can stop almost immediately.

R. C. L. Permanent Supplement, Yol. 1, Subject: Automobiles; sec. 12, p. 643 and sec. 29, p. 658.

Blashfield’s Encyclopedia of Automobile Law, Vol. 1, Subject: Speed and Control, Chapter 16, p. 318, and Stopping to Avoid Collision Chapter 17, p. 362.

In Jacobs vs. Jacobs, 141 La. 273, 74 So. 992, the Court said:

“As a general rule it is the duty of the driver of an automobile to maintain a speed sufficiently slow and fr' have such control over his car that he can stop within the distance in which he can plainly see an obstruction or danger ahead.
"But that rule does not apply to a case where a dangerous situation which the driver of an automobile has no reason to suspect, suddenly appears immediately in front of his car.”

In that case the sudden' appearance was an open canal across one of the streets of. the city of New Orleans, with which street the driver was familiar from frequent use and on which he was driving at night. The canal had been spanned by a bridge, but the bridge had been, unknown to him, taken up and the canal left open.

In this case defendant’s son met no surprise of that kind. He encountered only what he might have reasonably expected.

The District Judge prepared a well considered opinion in the course of which he says:

“The moment that the failure of the other car to swerve to its right and the decrease of intervening space between the two vehicles became such as to make further progress a matter of risk, it became his duty to note the recklessness of the other car, to recognize the possible danger of the situation, and to busy himself in guarding thereagainst.
“In the view of the Court, that contingency arose before he was within 25 feet of the other car.”

The judgment against the defendant is in conformity with the law and the evidence. (

The appellee urges in her answer to the appeal, that the amount allowed in the lower court should be increased to $2500.

The plaintiff has suffered severe injuries and endured long and excruciating pain. She had not fully recovered at the time of the trial, about a year after the injury. The lower court awarded her $2000. We do not think the amount should be changed.

Judgment affirmed, defendant to pay the costs in both, courts.

CONCURRING OPINION

In the case of Campbell vs. Haas, decided by this Court, reported in 4 La. App. 435, it was shown that Miss Maginly who was driving her car northward towards Opelousas had crossed the road from the right to the left side where she had parked the car near the ditch, temporarily, for repairs. It appeared that the lights on her car were shining brightly. Mr. Haas, the defendant in the case, it was shown, was driving southward irorn cpeiouods ms right-hand side of the road wherq me Maginly car nan oeen panted, as oeiore stateu. Me ran his auto into the Maginly car, lulling Miss Campbell ror whicn ne was held liable in damages. The record showed that derendant, alter he saw mat me Maginly car had been parked on his side of the road, could have safely passed it on his left-hand side and could have thus avoided the- accident. He explained that he did not swerve to his left because he thought another car was coming on his left side from behind the Maginly auto. As it .appeared, however, that no car was coming from that direction and that there was nothing that could have conveyed such an impression, it was held that he was at fault for not negotiating the Maginly car by swerving to his left where he had ample room to pass.

Under those circumstances the majority members of the Court found that he had not met the requirements of the situation by driving on the side of the ditch where the Maginly car was parked, hitting it, which resulted in the killing of Miss Campbell who was standing at the time behind the Maginly car.

In the instant case, the minor, Melvin Lirette, who inflicted the injury, says that after he realized that the Villavasso car was stopped or parked on his side of the road, that he could have passed to the other side of that car as “there was plenty of room” and which statement is sustained by the evidence. He a,dmits that he would have avoided the collision if he had swerved to his left after he had realized that the car was parked, but that he “took the ditch” which the evidence shows, resulted in the injury of plaintiff who was standing on the bridge that spanned the ditch.

In Tyer vs. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, the Court said that in order to enforce the doctrine of the “last clear chance,” “it must appear that plaintiff has clearly shown that defendant after seeing the danger could by the exercise of ordinary care have avoided the injury, or, if defendant did not see the danger * * * he might by the exercise of ordinary care have seen the danger in time to avoid the injury.”

Here, it does not only clearly appear that defendant had had full opportunity to see the danger in time to avoid the collision, but that he actually saw the danger in time, and admitted that he could have avoided the accident if he had passed to his left where he had ample room on that side of the roadway. There is not the slightest proof or intimation in the record, to the effect that another car was coming in the direction of defendant from that side of the road, or that he was laboring under such an impression, when he deliberately plunged his car in the ditch, and struck the Villavasso car, at the same time by running against the bridge on which plaintiff was standing, inflicting the damage complained of.

If at the time another car had been coming towards Melvin Lirette on his left side or that anything existed which could have created such an impression in his mind, in such an event, an emergency would have arisen which would have exonerated him or rather his father from responsibility, because under such circumstances, a collision with the Villavasso car or the car coming would have been inevitable. There was, however, no car coming towards Lirette. The proof is that his way was clear to his left for an easy passage on the side of the Villavasso car, and that according to his own evidence the collision would not have occurred had he followed that course which was open to him. Under the existing circumstances .■e was nothing that demanded that he should imperil his own life, as he had an open way to his left by plunging to his right into that ditch, and which could only result, and as it actually resulted, in a collision with the Villavasso car. It can not be said that in thus driving into the ditch at the almost .certain peril of his own life, and with the practical inevitable certainty of a collision with the Villavasso car, that Lirette exercised ordinary care. The exercise of ordinary care demanded that he should have swerved to his left and thus have avoided the (possibility of a collision with the other car or any accident. He was required under the humanitarian doctrine of the “last clear chance” in the exercise of ordinary care to have negotiated the other ear by passing to its left as before stated.

The driver of defendant’s car said in his testimony he thought he was compelled under the law of the road to swerve his car to his right into the ditch. In this respect he was. mistaken “as the driver of a car is not negligent in driving to the left of the road in trying to avoid an accident.” Smith vs. Interurban Trans. Co., 5 La. App. 704; Williams vs. Garcia, 2 La. App. 56.

If the accident had occurred during the daytime, Lirette, upon realizing the danger ahead of him, would unquestionably, under the rule of the “last clear chance” have been required to pass the Villavasso car by veering to his left side. The acci-1-uit, it is true, happened at night, but as he had realized the existence of the impending danger in time, the same reason--g applied, and required him to pass to 's left and thus avoid the collision; holding otherwise would establish the rule that the driver under no circumstances should be permitted to swerve to his left whatsoever might be the consequences, and which would be destructive of the doctrine of the “last clear chance” in cases of this character. Lirette, it seems, was .prompted by an honest impulse in driving his car on his right side into the ditch and against the bridge upon which plaintiff was standing next to the Villavasso car, thus inflicting the damage of which plaintiff complains. If a moral issue only was involved the defendant would be entitled to exoneration, but as it involves the enforcement of the “last clear chance” rule, it must bo held that Lirette failed to exercise the ordinary care which devolved upon him under the circumstances.

The proof shows that the Villavasso car was parked on the wrong side of the road. It also appears that Villavasso was in the car with his wife and daughter at the time of the collision. Villavasso was therefore guilty of contributory negligence which continued to the happening of the accident, was also at fault, and would have had no right of action against defendant. Canal Steel Wks., Inc., vs. City of N. O., 9 La. App. 575, 121 So. 773; Blackburn vs. L. R. & N. Co., 144 La. 520, 80 So. 708; Cowden vs. Shreveport Belt Ry. Co., 106 La. 236, 30 So. 747; McClanahan vs. Vicksburg, S. & P. Ry. Co., 111 La. 781, 35 So. 902; Wolf vs. N. O. Ry. & L. Co., 133 La. 891, 63 So. 392.

There is nothing to show that plaintiff, a third party, contributed in any way to the accident. The proof is that she was standing on a bridge spanning a ditch in front of her home when she was run into by defendant’s car. She had not exposed herself to danger, and had a perfect right to be where she was standing at the time.

In Thompson on Negligence, Vol. 1, section 75, the rule governing the right of third persons in such cases is well stated, as follows:

“If the concurrent or successive negligence of two persons combined together, results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the other contributed to the injury.”

This rule was recognized in a very able, exhaustive and interesting opinion by Mr. Justice Thompson, in the case of Appalachean Corporation, Inc., vs. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539. It is unnecessary for us to reproduce the reasonings of the court in that case, in which it is distinctly held on the authority of many citations that the third person thus injured may sue either of the wrongdoers or both at his option, and may recover damages against the one who is only technically a joint wrongdoer, leaving to him the right to recoup himself against the wrongdoer primarily responsible for the accident.

I find that Lirette failed to exercise the ordinary care of a prudent man under the attending circumstances and was therefore negligent or at fault.

Whether primarily or secondarily responsible plaintiff had the right to recover against defendant.

I therefore concur in the finding, holding him liable in damages and in the amount decreed.

LECHE, J.,

dissenting. The facts in this er-ce are not much in dispute. Defendant’s visitors had parked their car on the left side of the road, where they had a right to park, but negligently left the headlights of their automobile brilliantly shining, so that a chaufieur approaching from the opposite direction was bound to presume that the car was moving and that under the undisputed rule of the road he had to ■pass to the right of such headlights.

It is impossible at night, in the face of two shining headlights to know at what speed the incoming car is moving, but the presumption is irresistible that it is moving, otherwise why the use of the headlights. If he had passed to the left, the chauffeur would be negligent and liable for damages in case of a collision and it was his clear duty to drive to the right. Counsel in arguing the case, assumed that the chauffeur of defendant could see that the visitors’ car was stopped. That statement, in my opinion, is not supported by the evidence and is contrary to the logic of the situation. Of course, if defendant’s chauffeur had known that the visitors’ car was stopped it would have been his duty to also stop or pass to the left, but such is not the case. He only realized that defendant’s car was stopped when he got to it, too late to avail himself of the last clear chance.

The negligence which brought on the collision was that of plaintiff’s visitors (whom she should have sued) and not the negligence of defendant’s chauffeur.

The concurring opinion virtually concedes that parking an automobile at night on the left side of the road, with its headlights at full brightness and focused on the road ahead, is a snare by which the most prudent driver of an incoming automobile may be entrapped, and it follows that such act constitutes negligence. But I do not believe that defendant’s chauffeur was able to realize the true situation until it was too late to avail himself of the last clear chance. I therefore respectfully dissent.