author: ELLIOTT, J.

text:
    No. 673
    First Circuit
    MARTENS ET AL. v. PENTON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)

      Rownd & Warner, of Hammond, attorneys for plaintiffs, appellees.
    Beard & O’Keefe, and A. R. Christovich, of New Orleans, and R. D. Magruder, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

In a collision which took place on the Baton Rouge and Hammond highway between an automobile belonging to Hines Martens, while being driven by Ethel Bell Martens, his wife, and an omnibus which will hereafter be spoken of as a bus, belonging to Martin Penton, while being driven by his son, Ennis Penton, the plaintiff Hines Martens and his wife and three minor children w.ere all seriously injured. .

The injuries of Hines Martens were so severe and dangerous that he was forced to undergo treatment for nearly two months in one of the hospitals in New Orleans. He then returned to his home near Hammond, hut was compelled to return to the hospital in a short time for further treatment. At the time of the trial, more than a year after the accident, he had not fully recovered and there is evidence in the record that the ankylosis, which remains, will he to some extent a permanent impediment in the use of one of his legs. The expense incurred in the treatment of his injuries and that of his family amounts to nearly $1,000. He claims of the defendant, Pen-ton, $26,054.91 on account of his personal injuries, and further claims of him in separate suits, $500 in behalf of his son Oscar, $1,000 in behalf of his son Harold, and $1,000 in behalf of his daughter Ontie.

He alleges that the collision and the resulting injury to himself and his minor children was caused solely and entirely by the gross negligence, recklessness, and want of skill in driving, and the excessive speed on the part of the driver of the bus.

He avers that his automobile, while being driven by his wife, and in which he was riding, accompanied by their three children, was going southward on what is known as the Baptist road, at a prudent and moderate speed; that as they entered into its intersection with the Baton Rouge and Hammond highway, defendant’s bus came from the east, going west, at a high rate of speed and in a reckless and negligent manner, and ran into them on the south side of the highway, after they had turned to the left toward Hammond; that said bus at the time was on the left-hand side of the highway, which was the wrong side for it to be on, going west; that, if said bus had kept to the north side, which was its right side of the highway, it would have passed to the rear of plaintiff’s automobile and thus have avoided a collision.

The defendant, Penton, denies the negligence, recklessness, and excessive speed alleged against him by the plaintiff. He alleges that his bus was being driven on the northern side of the highway, going west, at a speed of about 25 of 30 miles an hour; that, when it got within about 60 feet of the place where the Baptist road forms a junction with the highway, plaintiff’s automobile, running about 25 miles an hour, without giving any signal or warning and without slowing down, suddenly came into the highway in front of his bus; that his driver, upon seeing it, attempted to avoid a collision by swerving to the left, at the same time applying his brakes, but, when it became apparent that said Martens did not intend to turn to the right or left, but continuously came across on the highway and that a collision was imminent, his driver then swerved to the right and attempted to pass around plaintiff’s automobile in that way, but the bus was by that time so close to the automobile that the collision could not be avoided.

Defendant avers that the accident was due solely to the fault, negligence, and want of care on the part of the driver of plaintiff’s car; that plaintiff, as master and director of his vehicle, was also responsible for the collision. Contributory and imputable negligence was pleaded against him as a special bar against recovery.

In the suit by Hines Martens personally, there was judgment in his favor against the defendant for $8,554.91, and in that by, him for the use and benefit of Harold Martens for $250, and in that for the use and benefit of Oscar for $100, and in that for the use and benefit of Ontie for $600.

In each case the defendant has appealed.

The minutes show that there was also a suit by Mrs. Ethel Bell Martens against Martin Penton, which made five in all, and we infer that it was for the same purpose, because the suits were all consolidated and tried together. But the suit brought by Mrs. Martens is not before us on this appeal. All the cases depend on the same facts; therefore our opinion in the present case will serve as such in each of the other cases before us on appeal.

The plaintiff-appellee has moved to dismiss the appeal in each case, alleging as grounds that the transcript was not made up, filed, docketed or lodged in the office of the clerk of this court on the return day therefor, nor within three days thereafter, and chat no extension was applied for or granted; that, even if the transcript had been timely filed, which was denied, no order of suspensive appeal had been applied for or granted. The record in each case shows that each of the appeals was filed in this court by a deputy clerk of the district court at Amite on April 7, 1930. In point of time this date was all right, but the contention is that the appeals should have been filed by the clerk of the Court of Appeál at Baton Rouge, which is the domicile of the court.

The Constitution 1921, art. 7, sec. 24, authorizes this court to designate such places for the return of appeals thereto as it finds well, in addition to the four places named in the Constitution. This court, in the exercise of this power, designated Amite as the place for the return of appeals from the parish of Tangipahoa. The Constitution 1921, art. 7, sec. 28, designated the clerk of the district court at these returning points, or his deputy clerk, to act as clerk or deputy clerk of this court until a clerk was' appointed. This court has appointed a clerk whose domicile is at Baton Rouge; and he travels with the court and acts as its clerk whenever it is in session. But, due to the fact that we have eight returning points, not counting Baton Rouge, and that two of them are in the eastern and four in the western part of the circuit, we find it necessary to take advantage of the further provision in the Constitution, same section, which authorizes the Courts of Appeal to use the clerk of the district court or his deputy as clerk or deputy clerk of this court, and have continued to use as formerly the clerk of the district court or his deputy, as clerk and deputy clerk of this court, except at Baton Rouge, for the purpose of receiving, lodging, and filing appeals to this court from the parishes returnable in the parish of which he is the clerk of court. It is necessary to do so, because appeals may be due at these various and widely separated returning points on the same day.

These appeals from the parish of Tangipahoa were therefore properly received, lodged, and filed in this court by the deputy clerk of the district court, acting as deputy clerk of this court, for the parish of Tangipahoa at Amite.

Plaintiff-appellee further contends that the appeals were not filed on April 7, 1930, as indicated by the filing, and has produced for our notice a certificate obtained by him from the clerk of court at Amite, bearing date May 7, 1930, in which the clerk of the district court certifies that the date of filing in this court; as appears to have been done by his deputy clerk,- was not, in fact, done on April 7, 1930, as certified to by the deputy clerk, nor within three days' thereafter, stating further, however, that these appeals were handled by him as ex officio clerk of the Court of Appeals in the same way and form that he usually handles such cases and as all other clerks have done heretofore.

In connection with this motion, we note that the transcripts of these appeals were certified to by the clerk of the district court as having been made by himself on April 7, 1930, the same day that his deputy clerk indorsed them as filed in this court. As the transcripts were each then in his hands, they were then, for practical purposes, lodged with him at Amite, and the date of filing by his deputy, acting as a deputy clerk of this court, corresponds with the date of his certificate to the transcript. Also the clerk’s certificate of the 7th of May, 1930, does not state matters which may be established by his certificate. It therefore has no effect as against his official act by his deputy, according to which the appeals in each case were by him filed in this court on April 7, 1930.

There is no motion to ■ remand for the purpose of having the matter investigated contradictorily with the appellant. The showing made by the clerk’s certificate of May 7, 1930,- does not justify an, ex officio remand for the purpose of investigation, and does not authorize the dismissal of the appeals. The ground that the appeal should he dismissed because the court in granting the appeal named $100 as the amount for which bond was to he given for both a devolutive and suspensive appeal must be likewise overruled. As there is an order in each case for a devolutive and suspensive appeal and bond in each case for the amount required by law for a suspensive appeal, the order and the bond sustains the appeal and there is no ground for dismissing it. Succession of Bey, 47 La. Ann. 219, 16 So. 825.

The law, Code Practice, art. 898, provides that an appeal is not to be dismissed on account of error or irregularity in the order granting it. It is not necessary for the court, in granting a suspensive appeal, to designate in the granting order the amount required for a suspensive bond. When the judgment, as in this case, is for a specific sum of money, the amount of the bond is fixed by law. ' It is not claimed thac the bond in any of the cases is for a sum less than the sum fixed by law for a suspensive appeal. Pan-American Bank & Trust Co. v. Ransom, 150 La. 142, 90 So. 548.

The order granting the appeal in proper terms being present, the character of the appeal is fixed by the amount of the bond, and the time within which it is filed. Succession of Keller, 39 La. Ann. 579, 2 So. 553; Act No. 163 of 1898, sec. 6.

The motion to dismiss is overruled.

On the merits of the case, the district judge did not file written reasons for his judgment.

The place where the collision took place is not on the new but on that part of the old Baton Rouge and Hammond highway which between Hammond and Albany runs a mile or more south of the Baton Rouge, Hammond & Eastern Railroad and south of the station on the railroad called “Baptist,” the place being situated in the parish of Tangipahoa. The road referred to as the Baptist road is a public road which leads from the station and settlement so called and forms a junction with the Baton Rouge and Hammond highway about 5 miles west of Hammond. The Baptist road is not, according to the evidence, a frequently used road; its use is largely limited to people going to or coming from the settlement in question. Its junction with the highway is of course well known to residents of the vicinity, hut, due to the proximity of buildings, trees, bushes, and shrubbery, the junction would in most cases not be noticed by people only occasionally passing along the highway in automobiles. The place was well known to the driver' of defendant’s bus because of the frequent use made by him of the highway. It is a dangerous place, however, for automobiles passing it on the highway at fast speed, because, due to the adjacent shrubbery and trees, an automobile coming out of it into the highway must get on the highway before it can be seen by them, particularly if going west. Its automobile traffic, however, is not frequent enough to justify regarding it as a place of well-known danger, and dangerous to the extent that defendant, passing on the highway with his bus which is not as manageable as a lighter vehicle, should, in expectation of an automobile coming out of it, have slowed down and placed his omnibus under such control upon coming close as to be able to stop immediately in case an automobile should appear. Mrs. Martens, wife of the plaintiff, was driving; Mr. Martens, plaintiff, was seated with her on the front seat; their three minor children, Ontie, Harold, and Oscar, were with them in the car.

They entered on the north, and started to cross to the south side of the highway. It was necessary to do so because the south side of the highway was their right side in going east toward Hammond, and the turn toward Hammond required a, left-hand turn on the highway.

Hines Martens, the plaintiff, in explaining how the accident occurred, says that they came to the highway, his wife driving, at about 7 miles an hour; that he saw the bus just as she entered the intersection; that the bus seemed to be about 100 feet ahead of them to the east, and was coming on their side of the road, by which he meant the south side, as that would be their side after turning toward Hammond. He says he warned his wife to keep on her side of the road; that the bus cut in front of them and then hit them on the side; that the bus tried to pass on their side of the road, meaning on the south side of the highway, and that it never would have hit them if it had stayed on its side of the road, by which he meant the north side; that the car did not stop as it got upon the highway; that his wife only slowed down; that, when his wife came into the intersection, she started across to her side of the road, meaning the south side; that the collision occurred just as his wife had commenced making the turn. Mr. Martens, although he had stated that he saw the bus upon entering the intersection coming on the south side of the road at a distance of about- 100 feet, when asked the direct question, if his wife came to a stop, and in what direction she was looking when she went on the highway, said that she did not come to a complete stop, and that he did not know in what direction she was looking. But in answer to subsequent questions he makes it plain and states it more than once, and in a way in which his meaning cannot be misunderstood, that he did not see the bus until his wife had crossed to the south side of the highway and had commenced to make a left-hand turn toward Hammond, at which time he says he looked and saw the bus coming in the highway, on the left-hand side, distant about 100 feet; that the rear end of his automobile was in about the center of the highway, his car at an angle to make the turn so as to straighten out on his side of the road. In saying, “On my side of the road,” he meant the south side, which he had reached, and on which his automobile was making or about to commence a left-hand turn at the time it was hit.

He further makes it plain that shrubs and trees alongside of the road, meaning the highway, prevented him seeing the bus when he first reached the intersection and looked up and down the road.

“Q. But when your line of vision first came on the outside of this clump of trees and shrubs so that you could see the Hammond Highway, you looked then and did not see the bus?
“A. As I got on tp the middle of the road I did see it.
“Q. And you say that this bus hit you a glancing lick?
“A. Yes.
“Q. Was the bus turned toward the right as it hit you a glancing lick?
“A. Yes.”

Mrs. Martens, when first questioned, stated substantially as did her husband, that she slowed down as she entered the intersection to about 7 miles an hour; that she saw the bus coming when she entered on the highway, about 100 feet distant; but she made it plain, when further questioned, and in a way in which her meaning cannot be misunderstood, that she did not see the bus until she had crossed to the south side of the highway and had started making a left-hand turn toward Hammond.

“Q. What did you do when you saw the bus, tell the court?
“A. Well, I drove into the highway and just started to make my turn toward Hammond when I saw the bus, but I thought I had plenty of time to reach my side of the road, and the bus could stay on its side of the road and go behind us without hitting us.”

She further states that at the time she saw the bus it was on the left-hand side of the road, by which she meant the south side; that the rear end of her car was at the time in the center of the road and the front turning a curve to the left.

“Q. When the seat of your car when you were driving and your hands were on the wheel, got opposite this fence at Big Charlie’s did you look toward Hammond for the bus?
“A. I only saw the bus when I got out in the road; I didn’t see it until I did get out in the road.
“Q. Are you positive?
“A. Yes.
“Q. I show you a photo which I am going to mark 3. This photo shows the road you were on, the Baptist road. This road, pointing to the Hammond & Baton Rouge Highway, is the Baton Rouge & Hammond Highway: This is Big Charlie’s house (pointing to house on photo) and this is the fence I am referring to, which runs in front of his place. When you got out here (pointing to property line) when your front wheels were even with this fence that runs in front of Big Charlie’s house, did you look, and did you see the bus?
“A. No, I could not see for the bushes. I did not see it when I reached the fence.
‘‘Q. Is it not a fact that if you are even with the fence, the fence and the bushes do not obstruct the view — the bushes behind Big Charlie’s fence?
“A. No, I could not see for the bushes.
“Q. Not until you drove into the highway?
“A. I did not see the bus until I got into the highway.
“Q. How far were you into the highway when you saw the bus?
“A. I was just making the turn.
“Q. Are you positive you were just making the turn?
“A. Yes, I am positive.
“Q. You were in the middle of the road?
“A. Yes.
“Q. That being the first time you saw the bus, how far was the bus away from you?
“A. About 100 feet.”

Another witness in the case familiar with the situation at the place of junction testified that coming out of the Baptist road into the highway you have to practically get into the highway before you can see anything coming on it from toward Hammond. The testimony of this witness and of Mr. and Mrs. Martens therefore supports that of Ennis Penton and other witnesses called by the defendant, all of whom agree that a party coming in an automobile on the highway toward Hammond at, say, 35 miles an hour, cannot see an automobile coming on the Baptist road until it enters on the highway. Therefore the testimony of defendant’s driver that the residence, fence, trees, bushes, and shrubbery at the place prevented him from seeing plaintiff’s automobile until it got into the highway is substantiated by all the evidence in the case. Defendant’s driver further testified that he was about 60 or 65 feet distant, driving at about 35 miles an hour, and that it was impossible to stop his bus after seeing plaintiff’s car in time to avert a collision. The only evidence as to the distance within which this passenger omnibus could be stopped' when running, say, 35 miles an hour, is that of Ennis Penton. He says that it can be done in about 70 feet; his estimate is somewhat supported by the fact that it did stop within 7 or 8 feet after contact with the Martens’ car.

Both Mr. and Mrs. Martens say that they slowed down upon entering the highway, but kept on across without stopping. Penton, Burns, and Dumas say that, when plaintiff’s car first appeared in front of the bus, it slowed down and acted as if it was about to stop, but kept on across the highway; that Penton applied his brakes when the Martens car first came into sight, but, as it seemed that the car was going to stop, he swerved to the left, but, upon seeing that it did not in fact stop, and kept going across, he swerved back to the right, but he was so close by this time that the collision could not be avoided. Penton is not only supported in this by Burns and Dumas, but indirectly'by the plaintiff, when he says: “The bus cut in front of us and then hit us on the side. I tried to pass on my side of the road, it never would have hit us had it stayed on its side of the road” — which amounts in effect to saying that the bus was swerved from the north to the south side of the road. Plaintiff’s automobile was one of the lighter makes; therefore the contact with it in the open road had but little effect in stopping the forward momentum of the omnibus, and, as the bus stopped within 7 or 8 feet after the impact, it is a proper conclusion that it was fast yielding to its brakes at the moment of the impact.

As the omnibus could not be stopped in time to avert the collision, the proper thing to have been done in the emergency was to pass to the right or left of the automobile, if it cpuld be done. It was the duty of the driver of the bus to do all in his power, consistent with the safety of his passengers, to avoid running it down.

Defendant’s driver says that, if the Martens car had not slowed down as it got on the highway, he could have passed to the right of it, but that it slowed down and seemed about to stop, and that he, thinking it was about to stop, swerved to the left.

The act of plaintiff’s wife and of himself in slowing down as if they were about to stop, upon getting into the highway, right in front of the oncoming bus, reasonably justified Penton in immediately swerving to the left. As it was impossible to stop and see whether the car was really going to stop, as it seemed about to do, or not, and the intervening distance between the omnibus and the automobile at the time the automobile was first seen was being cohered by the bus in an interval of time which was less than two seconds, the driver of the bus had to act on appearances. But as the Martens ear did not stop as it appeared to be about to do, but kept on across the highway, then the bus driver swerved back to the right, taking the last chance in that direction. But he was so close at the time of swerving to the right that a collision was unavoidable.

The duty of swerving from the side of the road on which a party belongs to the opposite side, when doing so apparently affords a chance to avoid a collision, was considered by this court in Penton v. Snell, 8 La. App. 648. The action of the Martens car when it first came out upon the highway misled the driver. of the bus and caused him to do as he did do, in trying to avoid a collision, and therefore the plaintiff cannot blame the bus driver for something which the plaintiff himself brought about.

Plaintiff and his wife claim that the driver of the bus caused the collision by driving on the left-hand side of the highway, which was the wrong side for the bus, going west. Defendant’s driver, Pen-ton, Burns, and Dumas all say that the bus was being driven on the right-hand side of the highway, going west, at the time plaintiff’s car appeared in the highway, and that it only turned to the left after plaintiff’s car had been seen, for the purpose stated by defendant’s driver. Plaintiff and his wife are unable to gainsay it, because it is established by them that they did not see the bus until their car had reached the south side of the highway. By the time the Martens' car got to the south side of the highway, defendant’s bus had ample time to swerve from the north to the south side, all as explained by Ennis Penton, Burns, and Dumas. The testimony of the plaintiff and his wife on one side and that of Penton and Burns and Dumas on the other is therefore not in conflict, because both sides can be true, as a result of their respective statements.

Plaintiff and his wife both state that they looked east and west along the highway as they drove on it and did not see the bus. But the evidence shows that the highway is practically straight at this junction for several hundred yards in both directions. Suppose this bus, therefore, to have been distant 200 feet at the time, instead of 60 or 65, as claimed by plaintiff, and 100, as claimed by defendant, when they first saw it, the plaintiff and his wife were bound to have seen it, if they had looked east upon driving on the highway. It was the duty of plaintiff and his wife on coming out of the Baptist road from behind the house, trees, bushes, fence, and shrubbery which concealed automobiles coming on the highway from their view until they got into it, to pause in a safe place long enough to make sure by looking carefully both ways that there was no automobile coming near ehough to endanger them before entering and attempting to make a left-hand turn. They are charged with knowing that automobiles on this frequently used highway have the right of way over automobiles coming into it from a less used public road, such as the Baptist road at its junction with it. In a situation such as the evidence establishes, it is useless for them to say that they looked east and did not see this bus. An object so large and so close at hand was bound to have been seen if they had looked in such way as to accomplish the purpose of looking. It is evident that they did not look until they had crossed to the south side of the highway and had commenced or were about to commence making a left-hand turn. They then saw it for the first time, but too late; the inevitable was at hand. The evidence is such that they must be considered to have entered and attempted to cross the highway in disregard of what was, to them, an obvious danger.

The present case is similar to Smith v. Interurban Transportation Co., 5 La. App. 704, and Hubert v. Robichaux, 8 La. App. 789. See, also, Bryan v. Magnolia Gas Co., 13 La. App. 52, 127 So. 124.

The plaintiff contends that he got on the highway ahead of the bus and was crossing it before he was struck; that, being the first to enter, he had the right to cross, as he was engaged in doing; that it was the fault of the defendant not to see him and avoid the collision. The rule he contends for applies to street intersections in cities and towns, and to two highways which cross each other in the country. But the Baptist road is not a highway, and furthermore it does not intersect the Baton Rouge and Hammond Highway; it only forms a junction with it.

Plaintiff contends that defendant’s excessive rate of speed was one of the causes of the collision. The testimony of Ennis Pen-ton, Burns, and Dumas is that the bus was making, at the time plaintiff’s automobile came into view, about 35 miles an hour. The only evidence indicating a faster speed is that of a witness who says that, when he reached the scene of the collision some minutes after it occurred, he heard somebody say that Penton was driving 40 miles an hour. It does not appear from the testimony that Penton was present and heard what was said. It is likely that Penton was present; still the evidence does not show that he was; consequently we are not disposed to regard this testimony as outweighing that of Penton, Burns, and Dumas that the bus was not running that fast.

Plaintiff contends that, as his wife was driving, negligence by her in the way claimed is not to be imputed to him. This position, in our opinion, cannot be maintained. The car in which the plaintiff was riding belonged to him as head and master of the community which presumably existed between him and his wife. Plaintiff was seated by her side, she was driving by his authority. He was not in the sense of the law his wife’s guest. Cyclopedia of Automobile Law by Blashfield, vol. 2, subject, “Imputed Negligence,” sec, 13, p. 1153; Bonfill v. New Orleans Railway & Light Co., 135 La. 996, 66 So. 339, L. R. A. 1915C, 419; Railroad v. McNulty (C. C. A.) 285 F. 97.

The case Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579, 59 A. L. R. 148, deals with the lack of authority and responsibility on the part of the wife for the fault and negligence of her husband in driving an automobile over which he has the authority of a master, and is therefore not controlling in the present case.

We have concluded from the evidence that the collision in question was not due to the fault and neglect of the defendant, and that the judgment appealed from is contrary to the law and evidence.

For the reason stated, it is ordered, adjudged, and decreed that the judgment appealed from herein be annulled, avoided, and set aside, and the demand of the plaintiff, Hines Martens, is now refused and rejected, at his cost in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 644
    First Circuit
    NEUMAN v. EDDY. (SOUTHERN CASUALTY CO., Intervener)
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellee.
    Vance E. Plauche, of Lake Charles, attorney for defendant, appellant.
    Pujo, Bell & Hardin, of Lake Charles, attorneys for intervener, appellant.
   ELLIOTT, J.

An automobile belonging to and while being driven by James C. Eddy struck a cow on the highway leading from Lake Charles to Alexandria and was thereby overturned, and Axel Neuman, riding therein as the guest of said Eddy, was, as a result, badly injured.

The occurrence took place after dark on October 14, 1928.

The plaintiff urges that his injuries and resulting damages were due entirely to the negligence, carelessness, recklessness and imprudence of the defendant in driving his car. He claims of him $15,600 as damages on said account!

The defendant denies the negligence, imprudence, carelessness and recklessness alleged against him. He alleges that he was driving on the highway and that the cow ran into the rear end of his automobile; that the collision was unavoidable; and denies responsibility for the occurrence.

Southern Casualty Company, in which defendant has a protective policy to the extent of $10,000 alleges that defendant made two reports to insurer concerning the accident, before and one after the suit, and that the one last made materially differs from the first two. It alleges that it believes that the defendant is aiding and abetting the plaintiff in bringing and prosecuting the suit, and is engaged in assisting him in his effort to develop a case of liability against the defendant, when none in fact exists.

It intervened in the suit and denied that the plaintiff and defendant were in fact host and guest on the trip in which plaintiff was injured, as alleged by the plaintiff; alleges that they were engaged instead in a joint enterprise and venture. It alleges that defendant was driving his automobile along the road carefully when a cow suddenly came out of a herd they were passing and struck the rear end of his automobile without warning, causing it to overturn. That defendant was not responsible for the accident nor liable to the plaintiff on said account. It further alleged that the cows were in plain view of the plaintiff; that he made no protest nor complaint to defendant with reference to his manner of driving while passing them. That therefore if defendant was negligent the plaintiff was also negligent and without right to recover of defendant.

' The lower court rendered judgment in favor of the plaintiff for $8,000 with interest.

Defendant and intervener have appealed.

The defense of joint adventuie urged in this court, was rejected without being mentioned in the opinion of the lower court;

The automobile in which the trip was being maae belonged to and was being driven by defendant. The trip was mutually agreed on; which one of the parties suggested it is not clear. The plaintiff paid nothing for the privilege of going in the automobile, but when they reached Oakdale the morning of the trip he treated the defendant to breakfast, but the evidence does not show that he otherwise underwent any expense. It is not shown that he had anything to do with the control of the automobile. He had no authority in the matter of driving, no right to interfere. The defendant drove as he saw proper without consulting the plaintiff.

The case of Sam Mathews Lawrason v. Eugene Richard, Jr., (La. App.), 129 So. 250, recently decided, involved a defense of this kind. In that case we quoted from Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L.R.A. 1917F, 253, as follows:

“Negligence on the part of the driver of an automobile is not imputable to his guest in the car, nor does one who accepts an invitation to ride in an automobile thereby engage in such a common enterprise or joint venture with the driver, that neither would be liable to the other for an act of negligence.”

A number of other authorities was also cited on the subject.

From Ruling Case Law, vol. 15, subject: Joint Adventures, p. 500, sec. 2, we take the following language:

“While it is true that at common law co-adventurers in an enterprise were recognized in courts only when the element of partnership was disclosed and on proof of the essential of a partnership, this is not the law at the present time, and although courts in modern times do not treat a joint adventure as identical with a partnership, it is so similar in its nature and in the contractual relationships created thereby, that the rights as between the adventurers are governed practically by the same rules that govern partnerships. A joint adventure generally relates to a single transaction. The usual test of a partnership as between the parties to a joint adventure is their intent to become partners.”

From Cyclopedia on Automobile Law by Blashfield, vol. I, subject: Liability of Private Carriers to Guest, etc., p. 970, sec. 14, we take the following:

“A typical joint adventure in the operation of a vehicle is, where two or more jointly hire a vehicle for their common purpose and agree that one of their members shall drive it, the possession of the vehicle being joint and each having an equal right to control its operation.
“The doctrine of joint adventure as applied to the operation of an automobile owned by one of the occupants should be restricted to cases where the common right to control its operation and the correlative common responsibility for negligence in its operation is either clearly apparent from the agreement of the parties, or is a logical conclusion from the facts found by the triers.”

The subject is continued by illustration, but further quotation would add too greatly to the length of thri. opinion.

The question is considered by the same author in volume 2 under the subject of Imputed Negligence, pages 1137 to 1152. The following is an excerpt from section 31, page 1151:

“The common purpose of riding together for pleasure does not alone establish a joint enterprise for the purpose of imputing the negligence of the driver to his companion, and the owner and driver of an automobile and his passengers can not be deemed engaged in a joint enterprise within the law of imputed negligence, merely because the trip is for the purpose of attending a ball game in which all are interested.”

Further illustrations follow but it would require too much space to quote them. The subject may be summed up by saying, that in order to render an automobile trip by two parties a joint adventure, while the driving must be done by one, it must be subject to common authority and right, and as the sole and exclusive right and authority in this case was vested in and exercised by Mr. Eddy, it was not a joint adventure, but the relation was that of host and guest, as alleged by the plaintiff.

The plaintiff and defendant had been on a trip from Lake Charles to. a place near Alexandria, and were at the time of the accident, on their return to Lake Charles, going south on the highway, when just north of Kinder and just after dark, defendant driving, they met a string of cows on the highway coming north, estimated at from 10 to 15 head. The cows were walking single file, one behind the other, forming a column, estimated at from 100 to 150 feet long, on the left-hand side of the road going north.

It had rained during the day, but the night was said to be clear. The cows were plainly visible to the plaintiff and defendant under the headlights of their car, say 150 feet head, when they first saw them. The defendant had been driving at a speed estimated at f~om 30 to 40 miles an hour, but upon seeing the cows he slowed down to about 20 to 25 miles an hour as he came up to them. At about the time they . reached the head of the column, a cow, the plaintiff says, rhe one at the far end of the line, defendant thought it one near the far end, and at a distance estimated to have been 75 or 100 feet ahead of them, left the line and started walking westward across the road, upon which Mr. Eddy, seeing this movement, immediately speeded up and proceeded faster than he had been going, after having slowed down, his purpose being to pass to the west of the cow before she could reach the side of the road on which he was driving. The road was about 40 feet wide and when the cow got about half across she increased her speed, going into a trot, upon which defendant, who was then distant about 40 feet, seeing her increase her speed, immediately speeded up to a still greater speed, making his car go about as fast as it could in an effort to beat her and pass her before she could get in his way ahead. Plaintiff, speaking of defendant’s speed at the time he struck the cow, says it was very fast. Defendant stated that he could not estimate the speed he was going at the time he struck the cow, but that it was about as fast as he could go. The front part of his automobile got past the cow hut the hind part struck her as it passed, the collision causing it to overturn.

The plaintiff and defendant were the only witnesses to the occurrence; their statements are not exactly alike, hut the difference between them is unimportant.

The intervener claims that plaintiff and defendant are colluding for the purpose of making out a case of liability, to fall on insurer, when no liability in fact exists.

The plaintiff and defendant are old-time friends. At the time of the trial the plaintiff was 64 and the defendant 70 years of age, and they had known each other for 25 years or more. Following the accident the defendant made a report of it to the intervener, and subsequently made a second report.

The suit filed notified intervener of plaintiff’s allegation that defendant, after seeing the cow, which had turned out of the column and started westward across the road, increase her speed, had in turn immediately increased his in an effort to pass her before she could reach the side of the road on which he was driving. This fact not having been mentioned in defendant’s previous statement, defendant called on him for a third statement, which was furnished. This statement bears date August 16, 1929, and with reference to the matter mentioned, says:

“On the night of October 14th, 1926, coming south about one half mile north of Kinder, I was driving a Ford car at a rate of 30 or 35 miles per hour. We met a herd of cows, about 10 or 12, walking single file on the east side of the road. I slowed down to about 20 miles an hour until I saw a cow turn out to cross the road ahead of me about 75 or 80 feet. I increased my speed, to what rate I do not know, to head off and pass the cow on the west side of the road. The cow collided with the rear end of the car, which caused the car to skid and overturn,” etc.

The record does not indicate that defendant at the time of making his reports previous to the suit was aware of the importance of the matter mentioned in fixing on him the responsibility for the accident. The report he. made to intervener following the accident was very brief. That of January 29, 1929, was more detailed than the first, but the incident of the cow increasing her speed after getting about half way across the road, and that upon seeing her do so, defendant immediately increased his, in an effort to beat and pass her before she could get to the side of the road he was on, was not mentioned. Defendant testified on the trial that his last report was correct. He was not asked to explain how it came about that the statement made in his last report came to be omitted from the two made before the suit was filed. The matter is left open for inference, and the inference is in favor of candor and truth.

There is no evidence that the plaintiff was aware at the time the suit was filed that defendant had protective insurance, but due to the long friendship that had existed between the parties and their continued friendly relations, we think it probable that plaintiff was aware that such was the case. Therefore assuming that plaintiff, had such knowledge before suit and giving to the assumption all the weight to which it is entitled, in connection with defendant’s failure to mention in his reports previous to the suit, the incident mentioned in the one made after suit, we are not satisfied that collusion exists. Intervener, however, is not to be blamed for being suspicious.

The duty of a host to his guest, under the circumstances in which plaintiff and defendant were driving, is stated in Jacobs v. Jacobs, supra. We quote from the syllabus :

“The driver of an automobile who has invited a guest to ride with him is not absolved from responsibility for negligence or imprudence merely because he is performing a gratuitous service or favor to his companion.
“Although an invited guest of the driver of an automobile, being a mere licensee, is not entitled to the consideration due by a carrier to a passenger for hire, he is nevertheless entitled to the benefit of the provision of the Civil Code, that any act of negligence or imprudence that causes injury to another obliges him who • was at fault to pay for the injury. ]
“As a general rule it is the duty of the driver of an automobile to maintain a speed sufficiently slow and to have such control of his car that he can stop within the distance within 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 the automobile had no reason to expect, suddenly appeared immediately in front of the car. * * *
“The driver’s duty and responsibility to his guest in an automobile is merely to be careful and avoid committing any act of negligence or imprudence that might add to or increase the ordinary danger of the occupation. The responsibility of the driver of an automobile, for the safety ot his guest in the car is not limited to his duty to abstain from acts of gross or willful negligence, but demands that he avoid the ordinary negligence or imprudence referred to in the Civil Code.”

In Timberlake v. Cassidy, 1 La. App. 630, a case similar to the present, it was said, p. 635:

“It is inferable from the evidence that the intersection was reached, danger seen and automobiles overturned almost simultaneously, that is, so quick that nothing she could have said or done could have averted the collision. It was the duty of the defendant to exercise reasonable care and precaution for the safety of his guest, without requests from them to that effect, and reasonable care required him not to run by such a place at a speed which forced on them the involuntary jeopardy of a chance escape. Gross negligence and willful recklessness is not necessary under the law, to his responsibility, neither must that active care appear which the law requires when passengers are carried for hire. But he was under the ■ obligation and duty to his guests to exercise reasonable care and prudence for their safety and to drive accordingly.”

Brock v. Friend, 4 La. App. 720, is another similar case. In that case it was said, page 721, one judge dissenting:

“The evidence shows that Mr. Friend did not exercise reasonable care for the safety of Dr. Brock. His driving was heedless, recklessly fast, and when he entered a sharp curve in the road he was running so fast that he. could not guide nor control his car.”

On page 722 it was further said:

“The death of Dr. Brock was due solely to the fault and imprudence of Mr. Friend in driving his car on the road at a speed beyond his control, and it overturned as a result of its excessive speed in round* ing a curve. In acting as he did he took no care for the safety of Dr. Brock. He owed him the duty of reasonable care while riding in his car by his express permission.”

On the subject of speed see also Act 296 of 1928, sections 4 and.5. In this case the evidence shows that if the defendant had maintained the speed to which he had slowed down as he came up to the head of the string of cows, he could and would no doubt have passed them all; the one that turned out at the far end of the line as well as the others, without accident.

The cow that left the line and turned westward across the road was so far from him at the time that he could have easily stopped before reaching her if he had tried, or he could have easily swerved and passed to the left of her in the road 'without stopping. The accident could have been easily avoided by taking- the precaution plainly to be seen under the headlights of the car. It seems a necessary conclusion that defendant’s act in increasing his speed to as fast as he could go when he saw the cow increase 'her speed, with the view of beating her in a race and passing ahead of her in the road on the side on which he was driving, must be accounted an act on his part in driving, as a gross fault, within the meaning of the law, Civil Code, arts. 2315 and 3556, subd. 13, and negligence and imprudence for which he cannot be excused. His act deprived his guest of the reasonable care while riding in his automobile, to which he was entitled under the law, subjected him to involuntary, unnecessary and uncalled for peril, brought on- him great personal injury, long endured suffering and very serious financial losses and damages, all of which defendant is obliged to repair, as near as it can be done.

Intervener contends that as plaintiff saw the cow turn out of the line westward across the road, saw her increase her speed and saw the danger, all as well as the defendant, he was negligent in that he did not caution nor warn the defendant, nor protest against his act in trying to pass the cow before she could get to the side of the road on which he was driving. The burden of proof was upon intervener to show that the plaintiff was guilty of contributory negligence, the same as it is on the defendant Buechner v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L.R.A. 334, 104 Am. St. Rep. 455. Plaintiff’s negligence in the matter does not appear. From the time the cow increased her speed and defendant increased his in order to meet that of the cow, until the collision occurred, the space of time was too short in which to warn defendant about the danger or to protest against his act. Defendant, starting suddenly and without notice to plaintiff, was within striking distance before his act could have been recalled. It seems to us that the fault and negligence was solely and entirely that of the defendant, and it is a case in which the claim of the guest must be allowed.

The case was correctly decided against the defendant and intervener in the lower court.

The plaintiff for answer to the appeal of defendant and intervener has prayed that the judgment be increased from $8,000 to $15,600. We do not think that plaintiff’s request should be granted.

The intervener contends that the judgment ought to be reduced on the ground that it is excessive. Plaintiff could hardly walk at the time of the trial, some nine months after the injury. His injured leg is two inches shorter than the other. He has suffered greatly and for a long time and is crippled for life. His expenses for drugs, medicine, nurses, doctors, hospital fees, etc., amount to a large sum. In addition to this he has sustained important losses in his business. According to the physicians, plaintiff suffers from an ailment which existed prior to the accident, and his physical condition would be better than it is if it had not been for this ailment. The extent that this ailment has contributed to plaintiff’s present condition is a matter which cannot be figured out.

The matter is difficult to deal with. We think that the judgment should be reduced to $6,500, the amount to bear 5 per cent per annum interest from July 2, 1929, until paid. *

For these reasons the judgment appealed from in favor of the plaintiff and against the defendant is reduced from $8,000 to $6,500 with legal interest thereon from July 2, 1929, until paid, and that the defendant pay the costs in both courts.

And the judgment in favor of James O. Eddy against Southern Casualty Company is accordingly reduced to $6,500 with 5 per cent per annum interest thereon from July 2, 1929, until paid, and defendant is given judgment against the intervener for all the costs that defendant is required to pay to the plaintiff.

As thus amended the judgment appealed from is affirmed.


author: MOUTON, J.

text:
    No. 700
    First Circuit
    STAFFORD v. NELSON BROS.
    (October 8, 1930. Opinion and Decree.)
    (December 1st, 1930. Rehearing Refused.)
    (January 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Amos L. Ponder, of Amite, attorney for plaintiff, appellee.
    B. B. Purser, of Amite, and Eraste Vidrine, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

The defendants contracted with the highway department to pave a highway 18 feet wide from about one mile south of Amite to Independence in Tangipahoa parish. After they finished laying the pavement they used an excavating machine to build the shoulders of the roadway. The machine was left on October 24, 1929, on the pavement, west side, taking nearly one-half of the paved part of the road. This machine weighed about 30,000 pounds and was nine feet wide.

While driving a Dodge automobile on this highway, plaintiff, on October 24, 1929, ran his car into the machine, totally wrecking the car. Plaintiff suffered severe personal injuries for which he is asking damages in this suit.

Mrs. Myra Hyde, widow of Fletcher Hyde, a guest in his car, who was riding on the front seat of the auto, is also demanding damages against defendants for injuries received by her.

The cases were consolidated for trial, and resulted in a judgment in favor of Stafford for $2,480, and for Mrs. Myra Hyde in the sum of $2,000.

Defendants appeal.

In a supplemental petition plaintiffs, alleging that defendants were residents of the state of Tennessee, obtained the attachment of property belonging to them situated in Tangipahoa. They excepted to the jurisdiction of the court for want of legal citation. Having, however, appeared to “dissolve the attachment and having obtained the release of the property under bond, exception to the legality of citation and want of jurisdiction must be considered as being waived. Colligan v. Benoit, 13 La. App. 612, 128 So. 688, June 9, 1930; Ribundo v. Kemp, 12 La. App. 512, 126 So. 577.

MERITS

In the answer it is set up that when the plaintiffs were injured they knew that the highway was in process of construction. This allegation implies, we presume, that plaintiffs subjected themselves to the risks which they could expect to meet on a road which had not as yet been opened to the public for travel. There is no merit in that defense as the record shows that the highway, prior to the accident, had been generally used by the public, and had been opened for traffic. It is also contended that the defendants had stuck signs or written notices along that highway warning travelers that they used it subject to all risks.

The testimony in the case is rather conflicting on the issue as to whether such notices were on that roadway at the time of the accident, and leaves this question much in doubt. Even if such notices were there, as contended for by defendants, they might, particularly at night, have been easily overlooked by travelers and could not serve as a legal excuse to defendants who by opening the highway had permitted its untrammelled use. The proof shows that immediately after this unfortunate accident the highway, under the instructions of defendants, was immediately blocked and thus closed to the traveling public. This action on their part indicates that they then saw the necessity of closing the highway, a situation which they should ■ have realized before. It is likewise contended by defendants that there were lighted lanterns attached to the machine when the collision with Stafford’s auto occurred. On this question five witnesses, including plaintiff, Stafford, swore that there were no lights on that machine. Four of these witnesses were entirely disinterested in the outcome of this case. On the other hand, about an equal number of employees of defendants testified that the lights were there at the time. There was, therefore, a sharp conflict in the testimony of these witnesses on this issue of fact. Credence was given by the trial judge to the witnesses for plaintiff, and on a question of this character where the evidence is about equally balanced, it is well settled in a long line of decisions, unnecessary to cite, that the finding below will not be disturbed by the appellate court.

. In . the solution of this case it must therefore be accepted as an established fact that there were no lights on that machine when the damage happened.

Section 5, Act 232, 1926, p. 388, requires any truck, bus or passenger automobile standing on a roadside or street to have a tail light or a parking light mounted on the rear left fender.

As the ' excavating machine, the one in question, was ten feet high, weighed 30,-000 pounds and covered nearly one-half the pavement, we are of the opinion that it should have had conspicuous lights at night for the protection of travelers over that roadway. We hold that it was inexcusable negligence for. defendants to have allowed this machine to stand on and cover about half of the pavement of that highway without .lights. As it clearly appears that defendants were in that respect at fault or negligent, the sole question remaining for decision is as to whether or not plaintiff, Stafford, who was driving his car, contributed to the accident, by not seeing the machine, or that he should have seen it in time' to avoid the collision, but ran into it through his own fault or for failure to exercise ordinary care under the circumstances.

The record shows that Stafford was going southward towards Independence and was therefore entitled to the west side of the paved portion of the highway, nearly half of which was occupied on that side, by the machine. It is shown that Stafford was traveling on his right-hand side of the road when, he came up to the machine. He was then going at 35 or 40 miles an hour. He could have been going at 45 miles and would still have been within the statutory limit of speed. There was another car driven by Mr. Delhonde which was going northward, that is, in the opposite direction.

The defendants say Stafford could and should have seen that machine in time to avoid the collision and that it was by his negligence that he ran into it.

Mr. Delhonde, witness for plaintiff, says he saw the machine a while before the accident when he was then on his way to Independence; that about an hour after on his way back to Amite, referring to himself and Mrs. Delhonde, who. was driving his car, he says, “We were watching for. the machine, as we knew it had no lights.”

Mr. Warner, another witness for plaintiff, says he was driving between 30 and 35 miles over this highway and saw the crane of the machine only when he was about 40 feet from it. It was about 7 o’clock when Mr. Warner passed the machine, while Stafford went up against it half an hour later when it is very probable thicker darkness had settled over the highway.

It would be unreasonable, under the circumstances then existing there, to say that Stafford could or should have seen the machine sooner than he did.

The record shows that Mr. Delhonde was coming towards the machine traveling northward, and that Stafford, who was going southward, saw the Delhonde car when it was at a distance of about 60 or 70 yards.

Stafford says he figured “on passing that car.” He was then asked, “What did you do when you noticed you could not see?” He answered, “I slowed down.” Then corrects himself by saying, “I started to slow down.” He testifies, in referring to the machine, that when he started to slow down he was “right at it,” not “over forty feet.” He says he tried to go around the machine but did not know on which side of the road it was; that he swung to the right and then “whipped” to the left to avoid the collision, but in vain. When he struck the machine he was going, he says, 30 miles an hour, which shows that he had reduced his speed five or ten miles an hour, as he had testified he was going before at 35 or 40 miles an hour. He was asked “in what space” he could stop a car running at 35 or 40 miles an hour. His answer was, “If I have got a certain space to stop I can stop within a distance of fifty feet, but if something shows up ahead of me I don’t know.” There is no evidence to contradict that statement or to show that an auto traveling at that rate of speed could be stopped in a shorter distance. It does not appear that when he saw the machine, which was not over 40 feet away and when he was then blinded by the lights of the Delhonde car, that he applied his emergency brake. It must not be said, however, that he was at fault or negligent for not doing so, as it appears from his evidence, and which is not contradicted, that he could not have stopped within a distance of less than 50 feet, even if he had had that much of a designated space within which to stop his car. Naturally, when surprised by an object suddenly appearing before him, as he explains, he could not say that he could bring a car to a stop even within a space of 50 'feet. Hence, we must hold that if he had applied his emergency brake when he was first blinded by the lights of the Delhonde car when he was then 40 feet away from the machine a collision would have been inevitable because he could not have stopped in time to avoid striking it.

Let us say, however, that Stafford, on seeing the machine, instead of going around it, should have applied his brakes to stop his car. Accepting this view of the case, he would not, however, be responsible in damages, because the defendants by permitting the machine to remain on the highway without lights had by their own fault created an emergency there, and from which it follows that defendants had created two hazards with which Stafford was suddenly confronted. In being placed in such a perilous position, he had to take the risks of applying his brake or of attempting to go around the machine so as to avoid striking it. We are of the opinion that he actually exercised the ordinary care which any prudent person would have taken confronted, as he was, with imminent danger to his life or bodily harm. Even if he did not exercise the best judgment — considering the situation in which he had been placed by the inexcusable negligence of the defendants — he cannot be held liable for the results of the collision. Navailles v. Dulmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508, citing McFern v. Gardner, 121 Mo. App. 1, 13, 97 S. W. 972, 975; Weinfield v. Yellow Cab Co., 10 La. App. 316, 120 So. 420; Lorence H. Pope v. Sam Locascio, 13 La. App. 304, 126 So. 727.

AMOUNT OF DAMAGES

Dewey Stafford and Mrs. Hyde were both severely injured. They suffered considerable pains as a result of their personal injuries, which it seems, may be followed with permanent effects. It is unnecessary for us to go into the particulars in reference to the cuts, bruises, breaking or fracturing of bones which resulted from the collision.

Dewey Stafford sued for $2,995, and was given judgment for $2,480, and Mrs. Hyde was allowed $2,000 on a claim also for $2,995, which counsel for plaintiffs explain were brought for these respective amounts to avoid the delays of a trial in the Federal courts had larger claims been sued for, the defendants being non-residents.

After a careful reading of the evidence referring to the nature of the injuries suffered by plaintiffs, as described by them and by their physicians, we find that the court has given to plaintiffs a fair and just allowance for the damages claimed.

In this case the judgment is therefore affirmed with costs. A proper decree will be entered affirming the judgment rendered in favor of Mrs. Myra Hyde in her suit against defendants for the reasons assigned herein.


author: LeBLANC, J.

text:
    No. 640
    First Circuit
    JOHNSON v. CALCASIEU SULPHATE PAPER CO., INC.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff presents a demand against defendant under the Employers’ Liability Law (Act No. 20 of 1914, as amended), for compensation at the rate of $12.68 per week, for a period of 400 weeks, and the additional sum of $250 for medical and nursing fees. He also prays that the fees of the experts who testified in this case be taxed as costs and that his attorney’s fees be fixed as provided for in the statute.

He alleges in his petition that the injury which later incapacitated him from work, was received by him on or about August 8, 1928, while he was in the employ of and working for defendant in its paper mill at Elizabeth, La. He avers that his duties consisted in tying, bundling and stacking paper, and that while he was handling a very heavy bundle, which was to be loaded on a truck, it moved and slipped and fell heavily against his abdomen, causing some internal injuries fully described in the petition, and for which it became necessary later that he be operated on. The operation which necessitated an exploring of the abdominal region, revealed that he had what is referred to in the medical testimony as a ruptured diverticulum of the ileum. In plainer language, it may be said that the ileum is the lower part of the small intestine and that a diverticulum is a swelling or an extension of the intestine, comparable in some measure to the appendix. The intestines of the human body are 'surrounded by membranes or tissues and these compose what is called the mesentery. The diverticulum in this case had ruptured in the mesentery and caused a large mass to form therein, all of which created a serious impairment of the intestinal function. The result, as the plaintiff alleges, was his inability to do his work, and he claims that he is therefor entitled to compensation.

The defense is a denial of the accident and injury complained of and also a plea of failure on the part of plaintiff to have given notice of the accidental injury until more than six months after the date on which it is alleged to have occurred, which failure is urged in bar of the claim.

The district judge, after hearing the evidence, reached the conclusion that the plaintiff had never sustained any injury, and that his trouble was due to disease. He rejected the demand and plaintiff appealed.

We do not .find any merit in defendant’s plea that plaintiff’s failure to give timely notice of the accidental injury operated as ■ a bar to the bringing of this proceeding. He reported his ailment to the company’s pnysieian, which, according to the testimony of defendant’s superintendent, was the course usually pursued by its employees in reporting accidental injuries. The physicians were íd doubt about his condition, and treated him for gall stones and chronic appendicitis. In the face of their advice and the treatment they administered, he himself would not undertake to state what the real trouble was and demand compensation.

Plaintiff’s trouble seems to have been a rather uncommon one. Indeed, it was not until the surgeon had performed the operation that the physicians Were able to determine definitely what it was. We are fortunate in having the testimony of quite a number of these medical men in assisting us in reaching a conclusion, and, after reading it all, we think we can safely say that a condition such as was found in this plaintiff’s case, might be caused from the effects of a' blow or injury. Of- course, we accept as correct also, some of their testimony that a ruptured diverticulum may be the result of disease, which, in the opinion of some of the doctors who testified in this ease, was the cause of this plaintiff’s trouble. The weight of this expert testimony, however, is to the effect, assuming, of course, that the history the plaintiff gave of having received a blow is correct, that it was more probably the result of trauma.

If it were thought necessary, we might quote at length from the testimony of these men, eminent in their profession, but suffice it to say that Dr. Muir Bradburn, who performed the operation at the Charity Hospital in New Orleans, issued a certificate in which, after stating the history as given to him of the accident, expresses the belief “that the alleged injury could have produced the condition found at operation.” This opinion is shared by Dr. A. C. Sacco, who assisted at the operation, by Dr. E. L. Sanderson, chief surgeon and superintendent of the Charity Hospital at Shreveport, who had previously examined the plaintiff, and also by Dr. M. Y. Hargrove, who observed and examined him in court on the day of trial and formed his opinion from that examination and the history of the case as given in the reports and testimony of the doctors at the Charity Hospital at New Orleans.

Being satisfied on this point, the important question that now arises is, was the plaintiff injured in the way he claims to have been.

In his petition the plaintiff alleges that the accident happened on or about August 3, 1928. Much is said in argument about the timekeeper’s report at the mill showing that he was at work on August 9, 1928, and. several days following. It will be observed that the case was tried on September 23, 1929, more than thirteen months after the accident is alleged to have occurred. It is reasonable to suppose that after such lapse of time, there may be mistakes in testimony concerning dates, unless some records had been kept of them. Plaintiff testifies rather positively at the beginning of his cross-examination that it was on August 8th, but shortly after qualifies that by saying, “Or it was so close by we will call it August 8th.” Of one thing he is certain, that is, on the night he says he was injured, and taken to the doctor, he was advised by the latter to go home to bed and remain there for a few days, which he says he did. Dr. W. B. Allums, defendant company’s physician, corroborates him to the effect that he was advised to go home and stay in bed a few days. The payroll records kept by the paymaster, H. Y. Moore, show that he worked on August 1st and. 2nd, and did not return until August 6th, and then worked steadily throughout most of the month, missing only on the 11th and 12th, a Saturday and Sunday, and on the 26th, also a Sunday. Linking this evidence together,' makes it certain enough, we believe, to hold that the night he claims to have been injured was on August 2nd, and not the 8th.

Plaintiff, in describing the accident, says that he was tying paper in bundles in the finishing room. These bundles of paper vary in weight from 100 to as much as 400 pounds. They are handled on a table 30 or 31 inches high. The bundle he was handling at the moment of his accident weighed .250 pounds. It seems that he was tying this bundle preparatory tq loading it on a truck. To tie it, it was necessary that he turn it over, and in doing so, it slipped from the bottom and the top turned over toward him and struck him in the abdomen, just above the belt line. “When it struck me,” he continues in his statement, “it knocked me almost out, but I caught on the table and it seemed that it tore everything loose; I walked over to the next table and Plumlee (a fellow employee) asked me what was the matter and I told him I got hurt, and he carried me to the dressing room to change clothes; and Everett Deville (foreman) carried me to Dr. Allums and he saw a bruised place where it hit me, and he examined me and he advised me to go home and go to bed and elevate my feet higher than my head, in order that it would not come down, and on the third day he came to see me and found this knot just near the navel on the right.”

It is not disputed that Deville took him to Dr. Allums’ office, and this is what the latter, testifying more than thirteen months after, says about the matter:

“As well as I remember, he came into my office in the afternoon — he came into the office in the afternoon — and I believe some man brought him — down from the paper mill — and I think he was complaining of some abdominal injury. I carried him in my office and examined him and he was an employee of the paper company — and I looked him over and didn’t find any evidence of any serious injury, and for that reason I advised him to ?o home, and to be sure of no complications, I told him to stay in bed a few days. That is about all I remember. I remember that he had complained of some abdominal injury, and I advised him to go to bed, to be on the safe side — and possibly advised him to put ice on it.”

This, it strikes us, is rather certain proof that the plaintiff did complain of having been injured and thq examining physician’s statement that he found no evidence of “serious injury” justifies the inference that there was at least “some injury.” It is true that Dr. A. D. Mangham, another of the defendant’s physicians, testifies that he also “looked after” the plaintiff with Dr. Allums, and that he did not complain in his presence of any injury, but it is evident that he came in after Dr. Allums had examined plaintiff and obtained the statements he reports him as having made.

' The learned district judge did not believe the testimony of the plaintiff, as he rejected his claim. He also condemned the testimony of the witness Deville, who corroborated plaintiff as to. the happening of the accident, because of some discrepancy between it and a signed statement given by him to the representative of the Southern Casualty Company, which carried the defendant’s liability insurance. This statement is dated April 23, 1929, and was given in the office of the defendant company, in the presence of Mr. E. J. Ryburg, the superintendent of the mill, and Mr. H. Y. Moore, the paymaster. It was written by Mr. H. R. Adams, the insurance company’s representative, at the dictation, as it were, so Adams says, of Deville. Deville was a foreman in the defendant’s mill and is considered a “reliable fellow” by Mr. Ryburg, according to the latter’s testimony. When this estimate of his own superintendent and the circumstances under which the statement was prepared, are considered,, it is rather severe to condemn the whole of his testimony given under oath in open court, because of a variance with some of the details contained in the former statement. It is rather singular that in the statement, Deville is made to say that Randolph Plumlee, Gene Bowen and two others whose names he did not remember, were present, and yet no serious effort seems to have been made to obtain signed statements from any of them. Mr. Adams, the insurance company’s representative explains that he did go to Baton Rouge, at the Louisiana State University, to see Bowen, who was a student there, but arrived between 12 noon and 1 o’clock, at which time Bowen was drilling, and he did not wait to interview him. “That is all the effort I made to see him,” he says.

Plumlee, as a witness, corroborates the testimony of the plaintiff to the extent that he saw him tying the bundle of paper and as he turned it over, it fell. He did not see the actual blow, but says that plaintiff turned away and on his asking him what was the matter, he said he was hurt. If this witness is to be believed, as we find no reason for not doing so, it would be hard to escape the conclusion, considering the other facts in the case, that plaintiff had really received a blow in the abdomen, and that if it did not actually produce the rupture of the diverticulum at the time, it must have set in motion the cause which brought on the serious trouble he later experienced. According to some of the doctors’ testimony, there is a probability that that is what happened.

In argument, the point is stressed, that the plaintiff returned to work a few days after the accident. That also was possible, in the opinion of some of the medical experts. It is a fact, moreover, that he never was in good health after the injury, and from the month of November, 1928, on, was almost constantly under the care and treatment of the doctors.

It appeared also, that two years before the accident, the plaintiff suffered from a disease which is called flux. As we understand it, it is a sickness which produces a bloody discharge through the rectum. An effort was made to ascribe his condition at the time of his injury to this former ailment, but the medical testimony on this point, fails to show with any degree of certainty that there was any causable connection between the two.

We have come to the conclusion that the plaintiff has shown, with that sufficiency of evidence contemplated under the Workmen’s Compensation Statute (Act No. 20 of 1914, as amended), that he was injured by the weight of this heavy bundle of paper falling against his abdomen and in the absence of any more reasonable hypothesis, the serious trouble he after-wards experienced, is attributable to that, injury. He is therefore entitled to compensation under the law.

His condition after the operation, and at the time of the trial, was not good. His chance of complete recovery, according to the testimony of the physicians, is very uncertain. He is advised by them not to do work which requires much exertion and. any heavy lifting. The nature of his employment required that kind of labor, and, since he is unable to perform it, he should recover according to the demand he has made.

We do not find that he has sufficiently proven the claim he makes for medical and nursing fees, and these will not be allowed.

He is entitled to have the fees of the experts who testified in his behalf taxed as costs, and also to have his attorney’s fees fixed in the judgment.

It is therefore ordered that the judgment appealed from be avoided, annulled and reversed, and it is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff, William S. Johnson, and against defendant, Calcasieu Sulphate Paper Company, Incorporated, condemning the said defendant to pay unto plaintiff, weekly compensation, in the sum of $12.68 for a period of 400 weeks, beginning August 8, 192'8, with legal interest on each weekly payment from its maturity until paid, and all costs of this proceeding.

It is further ordered that the fees of each of the expert witnesses used by the plaintiff to establish his claim be, and they are hereby fixed at the sum of $20, and that they be taxed as costs herein.

It is further ordered that the fee of the plaintiff’s attorney herein be, and the same is hereby fixed at the sum of $650, arid that it be paid to the said attorney out of the weekly payments of compensation which have already accrued under this judgment.


text:
    No. 675
    First Circuit
    MARTENS v. PENTON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    Beard & O’Keefe and A. R. Christovich, of New Orleans, and R. D. Magruder, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

In this case, for the reasons stated in the case entitled Hines Martens v. Martin Penton, No. 2950, page 35 herein, 130 So. 354, it is ordered, adjudged and decreed that the judgment appealed from herein be annulled, avoided and set aside, and the demand of the plaintiff, Hines Martens, for the use and benefit of Harold Martens is now refused and rejected at his cost in both courts.


text:
    No. 676
    First Circuit
    MARTENS v. PENTON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellee.
    Beard & O’Keefe and A. R. Christovich, of New Orleans, and R. D. Magruder, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

In this case, for the reasons stated in the case entitled Hines Martens v. Martin Penton, No. 2950, p. 35 herein, 130 So. 354, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and set aside, and the demand of the plaintiff, Hines Martens, for the use and benefit of Ontie Martens, is now refused and rejected at his cost in both courts.


text:
    No. 674
    First Circuit
    MARTENS v. PENTON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Rownd & Warner, of Hammond, attorneys for plainúff, appellee.
    Beard & O'Keefe and A. R. Christovich, of New Orleans, and R. D. Magruder, of Amite, attorneys for defendant, appellant.
   ELLIOTT, J.

In this case, for the reasons stated in the suit entitled Hines Martens v. Martin Penton, No. 2950, p. 35 herein, 130 So. 354, it is ordered, adjudged and decreed that the judgment appealed from herein be annulled, avoided and set aside, and the demand of the plaintiff, Hines Martens, for the use and benefit of Oscar Martens, is refused and rejected at his cost in both courts.


text:
    No. 681
    First Circuit
    CITIZENS BANK v. KNIGHT ET AL.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    L. D. McDougall, of Covington, attorney for plaintiff, appellee.
    Baseom D. Talley, of Bogalusa, attorney for defendant, appellant.
   ELLIOTT, J.

Mrs. Mattie Knight, wife of Charles O. Knight, appeals from the judgment of the lower court herein to the extent that it is in favor of the plaintiff on its demand against her and to the extent that her demand against the plaintiff is refused. It is not necessary to state the case, except to the extent that questions at issue between the plaintiff bank and Mrs. Mattie Knight are involved.

Citizens’ Bank of Franklinton brought suit against Charles O. Knight as the maker and M. R. Jones as indorser on a note for $5,800, and alleges that it holds as collateral security and in pledge from Charles O. Knight several other notes, together with a paid-up life insurance policy for $2,000 on the life of the pledgor, No. 5015, in the Louisiana National Life Assurance Society of New Orleans and in which Mrs. Mattie Knight, wife of Charles O. Knight, is named as the beneficiary. That said policy reserved to the assured the right to change the beneficiary, in terms which do not require her consent in order to make the change. That said act, whereby said policy was pledged, assigns all the interest of Charles O. Knight in said policy to the petitioner. That said Charles O. Knight having assigned to petitioner all his rights in said policy, he thereby assigned to petitioner the right to change the beneficiary and to make the policy payable to petitioner.

That Pan-American Life Insurance Company has purchased the Louisiana National Life Assurance Society, taken over and assumed all its policies.

That Pan-American Life Insurance Company will not make the change, without a judgment of court or an express request from Charles O. Knight. That Charles O. Knight refuses to authorize the change. The petitioner therefore prays that Charles O. Knight he required to make the change, and upon his failure or refusal to do so within a time to be fixed by the court, that the judgment stand in lieu of such written authority or request. That petitioner’s lien and privilege, resulting from the pledge, be recognized and enforced, etc.

Mrs. Mattie Knight was made a party to the suit, in order that she might assert whatever interest, if any she had, in the policy.

C. O. Knight and Mrs. Mattie Knight appeared and e'xcepted to plaintiff’s demand on the ground that the petition stated no cause of action. This exception was by the court referred to the merits, without objection on the part of Mr. and Mrs. Knight. The defendant C. O. Knight made no further appearance and is not before this court as appellant from said judgment against him or otherwise.

Mrs. Mattie Knight further appeared and answered plaintiff’s petition, by denying the articles which allege that the policy had been pledged and assigned to the petitioner. And later she filed an amended and supplemental answer, alleging that she-was the owner of the policy by gift from her husband and that he had no right to pledge it to the plaintiff. She quotes in her answer the clause in the policy which provides for changing the beneficiary, and alleges:

“That this plaintiff claiming to have secured from C. O. Knight an assignment of this policy under date of October 4th, 1927, now is claiming the right to make the said C. O. Knight, change the beneficiary.
“That under said policy contract, this plaintiff, having accepted from C. O. Knight the purported assignment and it specifically alleges in its article 7, that the plaintiff is without right to ask for a change of the beneficiary.”

She then alleged in reconvention that she was entitled to have the policy returned to her; that she had been compelled to expend $250 on account of attorney’s fees and had been damaged to the extent of $750 by plaintiff’s refusal to turn the policy over to her. Her prayer is that the policy be restored to her and that she have judgment against the plaintiff for $1,000 in damages.

The court rendered judgment, which, in so far as it concerns Mrs. Mattie Knight, recognized the pledge under which the plaintiff held it from C. O. Knight and decreed that it remain, in the possession of the bank. That plaintiff under its assignment and pledge was entitled to all the rights of every kind of G. O. Knight in and to the policy, but refused plaintiff’s demand that the beneficiary be changed at this time.

As regards Mrs. Knight, the judgment rejects her reconventional demand as in case of non-suit.

Mrs. Mattie Knight appealed. Neither the plaintiff nor Charles O. Knight have answered the appeal,. therefore only such parts of the judgment and the effect thereof are before us which involve the rights of Mrs. Knight, under the petition against her, and her answer thereto, and demand in reconvention against the plaintiff.

For the purpose presumably of fixing jurisdiction in case of an appeal, the note of testimony commences with an admission “that the policy in contest here, has a val-

The policy hears date December 1, 1910, ue of considerably less than $2,000.00.” The briefs of the parties urge no rights of any kind except .in regard to this policy. It therefore seems under the admission that there is nothing else in dispute.

and an endorsement by the Pan-American Life Insurance Company that it has been paid up of date January 13, 1926.

It is not payable until after the death of Charles O. Knight and names Mrs. Mattie O. Knight as the sole beneficiary. It contains a change of beneficiary clause which reads as follows:

“Provided this contract is not assigned, the assured may at any time and from time to time during its continuance, change the beneficiary to take effect only, when such change and the written consent of the society thereto, are indorsed upon the contract, or attached thereto, at the home office of the society: whereupon all rights of the former beneficiary shall cease. If there be no beneficiary living at the death of the assured, the proceeds of this contract shall be paid to the executor, administrator or assigns of the assured.”

Also a further clause which reads:

“No assignment thereof shall be binding upon the society, unless made by an instrument in writing indorsed upon this contract or attached thereto, nor unless a duplicate shall be furnished to the society upon its execution. The society shall not be held responsible for the validity of any such assignment. Any claim made under an assignment, shall be subject to proof of interest and extent thereof.”

In Mrs. Knight’s original answer, she specifically denies averment No. 7 in plaintiff’s petition, wherein it is alleged that the policy was assigned to the petitioner. But in her amended and supplemental answer, she alleges that the plaintiff claims to have secured from C. O. Knight' an assignment, etc. And later that, “this plaintiff having accepted from the said C. O. Knight, the purported assignment,” etc. It seems to admit of doubt, whether Mrs. Knight in her pleadings has denied the assignment alleged by the plaintiff or not. But taking her pleadings as a whole, it seems to be her intention and to result from her averments, that a legal assignment has not taken place as claimed by the plaintiff, but if any has in fact been made, then it is not effective as to the Assurance Society nor as to the status of herself as beneficiary.

Acting on this theory as to her pleadings, the question which first presents itself for consideration is the extent of the rights of the bank, as regards this policy, and the interest of Mrs. Knight being contingent, what standing has she to contest plaintiff’s claim.

The plaintiff claims that Mrs. Knight has no vested interest in the policy. That is true. Mr. Knight has the power, under the contract, to destroy her status at any time. But until he has manifested a desire to change the beneficiary and the assurance society or its successor has given its consent thereto in the way provided for in the contract, then the plain-ciff, having such rights only as it has received from the assured, cannot require such a change.

Until an assignment of the policy has been made by an instrument in writing, signed by Charles O. Knight, and a duplicate of the same furnished to the assurance society, the plaintiff cannot successfully claim that the status of Mrs. Knight as beneficiary has been destroyed, ior, “It is the settled jurisprudence that, where a policy is made payable to a certain beneficiary, his interest can only be divested in favor of another beneficiary by the insured changing the contract in the manner which the contract points out that it must be changed to effect that result; and it was not so changed in this case.” Douglass v. Equitable Life Assur. Soc., 150 La. 519, page 527, 90 So. 834, 837; New York Life Insurance Co. v. Murtagh, 137 La. 760, 69 So. 165.

Under the evidence the status of Mrs. Knight as beneficiary has not been changed, and the policy has not been assigned in the manner which the contract points out that it must be done. It may be additionally said that the formality required by the Civ. Code, arts. 3158, 3159, 3160 (amended by Act No. 157 of 1900), for the pledging of a life insurance policy, has not been observed.

Mrs. Knight remains the beneficiary until it has been shown that her status as such has been destroyed by the assured in the way provided for in the contract, and so far it has not been shown.

The referee in bankruptcy having disclaimed interest in the policy, there is no need ior making the trustee, in the matter of Charles O. Knight, bankrupt, a party to proceedings such as the plaintiff has instituted, but it is a different matter -as to the Louisiana National Life Assurance Society or its successor, as the case may be.

A judgment, authorizing a change of beneficiary, as prayed for, to stand in lieu of the written authority or request of Charles O. Knight, might be effective as against Mr. Knight, but it would not be effective to accomplish the change, because the further consent of the assurance society or its successor is also necessary and tne assurance society or its successor is not a party to these proceedings and therefore cannot be thereby bound. ,

For these reasons the present claim of the plaintiff, in and to the policy in question, in so far as same depends on the destruction of the rights and status of Mrs. Knight as beneficiary and as having taken place as the result of a pledge or an assignment of the policy in question presently existing, must be refused as in case of non-suit. That is what the lower court seems to have intended, but we will make it more specific. And the situation is such that the present claim of Mrs. Mattie Knight, for possession of the policy and a vested interest as beneficiary, must be refused in the same way.

It' is therefore ordered, adjudged, and decreed that the demand of the plaintiff Citizens’ Bank of Franklinton, as regards the policy in question, to the extent that same depends on the destruction of the right and status of Mrs. Mattie Knight as beneficiary of said policy, resulting from the presently existing pledge or assignment alleged in its petition, is refused as in case of non-suit. And the present claim of Mrs. Mattie Knight, for possession of the policy and a vested interest as beneficiary, is also refused as in case of non-suit.

Plaintiff-appellee to pay the cost of the contest with Mrs. Knight in the lower court.

Mrs. Mattie Knight, defendant-appellant, to pay the cost of this appeal.