text:
    No. 3945
    Second Circuit
    THOMPSON-RITCHIE GROCERY CO. v. GRAHAM ET AL.
    (January 27, 1931. Opinion and Decree.)
    B. F. Thompson, Jr., of Alexandria,' attorney for plaintiff, appellee.

      R. W. Oglesby, of Winnfield, attorney for defendants, appellants.
   DREW, J.

Plaintiff instituted this suit, alleging that during the year 1926 it sold and delivered merchandise in the amount of $291.37 to J. A. Graham, a commercial partnership composed of J. A. Graham and Mrs. Ina Shumate Graham, and prayed for judgment against J. A. Graham, the alleged partnership, and J. A. Graham and Mrs. Ina Shumate Graham, individually and in solido. J. A. Graham and J. A. Graham, individually, made no appearance in the case. Mrs. Ina Shumate Graham answered denying all the allegations of plaintiff’s petition. On these issues the case was tried in the lower court, resulting in judgment in favor of the plaintiff as. prayed for, and from this judgment only Mrs. Ina Shumate Graham has appealed.

In 1912, J. A. Graham entered the grocery business in Winnfield, La., and continued in said business until June, 1927, operating under the name of J. A. Graham. A short time after he began business, his first wife died, leaving four minor children, and in 1916 he married the defendant herein, Miss Ina Shumate, who at the time possessed in her own right several thousand dollars.

At the beginning of the year 1920, J. A. Graham sold a one-fourth interest in his said business to Lee Grigsby for $1,000, with the understanding that, if the business did not make a prdfit during the year 1920, he would return to the said Grigsby the $1,000, with 8 per cent interest thereon. During that year, the business lost $2,000, and Grigsby demanded the return of his money, plus interest, or $1,080. J. A. Graham secured from his wife out of her separate paraphernal funds $1,080, and-paid same to the said Grigsby. At the end. of the year 1921, after taking inventory, Graham entered in the inventory book a notation showing that the business was owned one-fourth by his wife, Mrs. Ina Shumate Graham, and three-fourths by himself. This same entry was made in the inventory book at the end of the years 1923, 1924 and 1925. At the end of the year 1926, there was no such entry made.

During the latter part of 1926, J. A. Graham sold his storehouse and used the funds to pay a mortgage note held by one of the banks in. Winnfield, and in the latter part of 1926, or the early part of 1927, he executed to his wife a chattel mortgage on the fixtures and furniture in the store to the amount of the funds he had secured from his wife.

In June, 1927, the said Graham filed a petition in bankruptcy, and Mr. W. G. Bowden, credit manager of the plaintiff, was appointed trustee. When he came to take charge of the store and the books, on or about July 4, 1927, he saw J. A. Graham tear out of the inventory hooks the pages on which the notation as to his wife’s interest had been written. Bowden secured these sheets, which was the first information Bowden or any one else had that Mrs. Ina Shumate Graham was interested in the business of J. A. Graham. Acting on this information, the final discharge in bankruptcy of J. A. Graham was opposed successfully, and plaintiff then instituted the present suit alleging that Mrs. Ina Shumate Graham was a partner of her husband and therefore liable in solido for any indebtedness of the concern.

It is admitted that all goods, sold by plaintiff were sold to J. A. Graham, and that they had been selling him regularly since he first began business; that all goods were sold to J. A. Graham and were paid for by J. A. Graham, up to the first item on the account sued on here, which is dated April 5, 1926; that Mrs. Ina Shumate Graham had never held herself out to plaintiff or any one else as a partner of this concern; that she knew said entry had been made in the inventory hooks showing her to he a partner in the business, but that they were entered in said books without her knowledge or consent; when she discovered the entries in the books, that she did not object for the reason, as explained to her by her husband, that he made said entries in order that she might be protected for the return of her money as against the children of the first marriage, in case of his death.

Plaintiff contends that she, having knowledge of the entries and not objecting to same, was constituted a partner of her husband. This theory, however, is without foundation, for it is clear that, at the time Mrs. Ina Shumate Graham advanced the $1,080 to her husband, she could not enter into a partnership with her husband and could not bind herself' as a partner, even by her conduct. The law pertaining to the emancipation of married women in effect at the time of this transaction, the early part of 1921, was Act No. 219 of 1920, and this act in part reads as follows;

“ * * * That nothing herein contained shall be deemed or construed to authorize á married woman to contract with her husband, or to grant her the right to mortgage or pledge her separate and paraphernal property for the benefit of her husband. * * * ”

If any act or contract of partnership was entered into between J. A. Graham and his wife, it was when and at the time the $1,080 was advanced by Mrs. Graham to her husband, which was in the early part of 1921, and at which time, under the laws of the state of Louisiana, she could not become a partner of her husband.

The act relied upon by plaintiff is Act No. 132 of 1926, which act did not become a law in this state until the latter part of July, 1926, and the evidence fails to disclose any act by the said Mrs. Graham or J. A. Graham after that date which would indicate that they intended to form a partnership; while all the testimony indicates. to the contrary, as shown by the failure to make the notation in the inventory book of 1926, and the further action of J. A. Graham in executing to her the chattel mortgage on the furniture and fixtures in the store. All of the merchandise sold to J. A. Graham during the year 1926, with the exception of $48.88 worth, was sold and delivered prior to the act of 1926 becoming a law, and at a time whon under the laws of the state of Louisiana, the wife could not become a partner of her husband, and, if we should hold that the act of 1926 authorized a wife to form a partnership with her husband, and that the testimony in this case showed such to be the case, the only possible amount that plaintiff could recover would be the $48.88. However, the evidence fails to disclose any such acts, either express or implied, by the parties that would justify our holding that a partnership was created after July, 1926. We therefore conclude that, under the law and the facts of this case, no partnership existed between J. A. Graham and Mrs. Ina Shumate Graham, and that the judgment of the lower court, in so far as. the same applies to Mrs. Ina Shumate Graham, is erroneous and will have to be reversed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court, in so far as same applies to Mrs. Ina Shuniate Graham, the appellant in this case,' be reversed, and the demands of plaintiff against her are hereby rejected, at appellee’s cost.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3951
    Second Circuit
    BELLINO v. ABRAHAM ET AL.
    (January 27, 1931. Opinion and Decree.)
    T. A. Carter, of Alexandria, attorney for plaintiff, appellant.
    G. P. Whittington, of Alexandria, attorney for defendants, appellees.
   WEBB, J.

Plaintiff, Anthony Bellino, owner of a lot which is. contiguous to a lot owned by defendants, R. and A. Abraham, in the city of Alexandria, La., constructed a brick building on his property, placing one of the walls on the dividing line between the two lots, which extended six inches on the lot owned by defendants, and within about two inches of the wall of a frame building which had been previously erected on defendants’ lot.

There is not any doubt there was not any connection between the buildings or walls referred to at that time, but, some time after the construction of the brick building, defendants made some repairs or changes in their building, and plaintiff, contending that in making such repairs defendants had made use of the brick wall referred to, brought suit to recover judgment against defendants for one-half of the cost of the wall, in which suit judgment was rendered rejecting plaintiff’s demands, from which judgment plaintiff did not appeal.

Several years after the judgment was rendered, defendants, made other repairs on their building, and plaintiff contends that defendants in making such repairs, made use of the brick wall constructed by him, and in this action plaintiff seeks to recover judgment against defendants for one-half of the cost of the wall, which the parties state was some $735.

On trial of the cause, the record in the previous action was. filed in evidence, and further evidence was introduced tending to show the connection which had been made between the two buildings and the use of the brick wall by defendants in repairing their building, and plaintiff appeals from an adverse judgment.

As stated, there was not any connection whatsoever between the two buildings when the building constructed by plaintiff was completed, and, while the evidence is conflicting relative to the use made by defendants, in repairing their building, of the wall constructed by plaintiff on the dividing line between the properties, the preponderance of the evidence does not establish that the building of defendants is supported or rests upon the wall constructed by plaintiff, or, in other words, the demolition of either building would not affect the other; but the evidence does not show that defendants, in repairing their building, had connected the .roof with the wall constructed by plaintiff by cementing the material of which the roof was constructed to the wall, and placing flashing between the bricks of the wall above the point where the roofing material was cemented, and plaintiff urges that defendant by such act had made the wall a common wall, and became liable for one-half of the cost of the wall, under the provisions of articles 675 to 677, Civ. Code.

In support of the contention, appellant cites the case of Lehman v. Abraham, 2 La. App. 328, the syllabus of which reads:

“Where one makes use of a party wall for lateral support and to prevent the roof from leaking, he must pay for one-half of the wall under Civil Code, Articles 675, 676 and 677.’’

But in the cited case it appears that plaintiff had constructed a brick building on a lot contiguous to the lot of defendant, placing one of the walls on the line between the two lots, as allowed by article 675, Civ. Code, and that defendant subsequently constructed a frame building on his lot; the wall of which next to the wall constructed by plaintiff was not weather boarded, and defendant had connected the roof of his building with the wall, thus protecting the wall which had not been weather boarded.

In the present ease, as previously stated, the building on defendants’ lot was constructed prior to the time plaintiff constructed the building on his lot, and, at the time of the completion of the building on plaintiff’s lot, the two buildings were separated by a distance of about two inches; and, while the evidence as stated shows that defendants subsequently connected the roof of their building with the wall constructed by plaintiff, the evidence does not show that the connection afforded any lateral support to defendants’ building or that it was. made to protect the wall of the building. While it may be that defendant, in connecting the roof with the wall, did so at less expense than would have been the case if he had constructed his roof in such manner that the water falling thereon would pass between the walls of the building, such use of the wall was not, under the evidence showing that defendant had removed the connection when plaintiff protested, sufficient to warrant it being held that plaintiff had made the wall one in common and to render defendants liable for one-half of the cost of the wall.

'The judgment appealed from is. therefore affirmed.


author: WEBB,' J.

text:
    No. 3885
    Second Circuit
    GOUGH v. URANIA LUMBER CO., LTD.
    (January 27, 1931. Opinion and Decree.)
    Vinson M. Mouser, of Columbia, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   WEBB,' J.

This action was brought to recover compensation for an accidental injury alleged to have been sustained by plaintiff, M. H. Gough, while in the service of defendant, Urania Lumber Company, Limited, which is alleged to have permanently disabled plaintiff to do work of any reasonable character (see section 8, sub-sec. 1(b),-Act No. 20 of 1914, as amended by Act No. 242 of 1928), and defendant appeals from a judgment in favor of plaintiff as demanded.

The evidence established that plaintiff, while engaged in defendant’s service, was thrown from a flat car, which was attached to a train operated by defendant, and used in hauling logs to defendant’s sawmill, on or about April 18, 1929, and that the fall produced immediate disability to perform the work in which he was then engaged, and that the disability was continuous and existed at the time of the trial on May 27, 1930.

Appellant urges, however, that at the time of the trial, and for some time previous thereto, the evidence shows that plaintiff was afflicted with a disease of the kidneys, which of itself would account for any disability of plaintiff to perform manual labor, and that the evidence does not establish any connection between the disease and any injury sustained by plaintiff in April, 1929, and, further, that the evidence does not establish that plaintiff was permanently totally disabled to do work of any reasonable character.

While the evidence does show that, at the time of the trial and for some time previous thereto, plaintiff was afflicted with a disease of the kidneys, which the evidence established may result from other causes than trauma, yet the evidence conclusively established that plaintiff was and had been in good health and able to perform the laborious work in which he was engaged prior to the accident. And, as stated, the evidence further showing that plaintiff was immediately disabled to work by the accident, and that the disability was continuous, sufficiently established that the continuous -disability resulted from the accident, and, in view of the opinion of the physicians called, who stated that the fall sustained by plaintiff was sufficient to have injured plaintiff’s kidneys, and in the absence of any proof of an intervening cause, we are of the opinion that the accident was the proximate cause of plaintiff’s disability. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Hammons v. Southern Carbon Co., 5 La. App. 187.

Although the evidence does not establish that plaintiff at the time of the trial could not have done some work, plaintiff testified that he could not work without pain, and the majority of physicians called were of the opinion that plaintiff would experience some pain in performing manual labor, and that he was not able to engage in such work at the time of the trial. Under the evidence presented, it is evident plaintiff was at the time of the trial disabled tp do work of any reasonable character, and, the physicians disagreeing as to the period when the disability would terminate, the award was properly for permanent total disability. Section 8, subsec. 1(b); Bailey v. Gifford Sand & Gravel Co., 7 La. App. 513; Hargis v. McWilliams Co., Inc., 9 La. App. 108, 119 So. 88.

The judgment appealed from is therefore affirmed, at defendant’s cost.


author: MOUTON, J.

text:
    No. 713
    First Circuit
    SOUTHERN UNION LIFE INSURANCE CO. v. GODCHEAUX ET AL.
    (January 26, 1931. Opinion and Decree.)
    John W. Lewis, of Opelousas, attorney for plaintiff, appellant.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendants, appellees.
   MOUTON, J.

On the 16th of July, 1924, defendant, J. L. Godcheaux, was employed hy plaintiff company as a solicitor for applications for life insurance policies.

This suit is brought for nets and advances to J. L. Godcheaux for 1926 to the amount of $2,019.57, subject to credits for $389.52. To secure the performance of his contract, J. L. Godcheaux furnished a penal bond for $500, signed by Charles A. Godcheaux and Sylvan Godcheaux.

Judgment was rendered against J. L. Godcheaux for the amount claimed and against the bondsmen for $500.

The defendant, J. L. Godcheaux, on a plea in bar of the action, alleged that the contract was entered into in the state of Texas, where he resided, and where he was still legally domiciled, and that the bond had also been executed there. Grounding themselves on the foregoing allegations, the defendant averred that, under the statute of limitation ,in Texas, an open account is ¡prescribed in two years and a bond in four. They pleaded for the application of the Texas statute of limitation to the account and -bond, and, in the alternative, that the prescription of three years under the laws of Louisiana be applied to the account, but no prescription under the laws of this state is urged as to the bond.

Where a contract or obligation has been entered into between persons residing out of the state of Louisiana, and to be paid or performed out o.f this state, and such obligation is barred by the statute of limitation of the place where the contract is to be ¡performed, the same shall be considered prescribed in this state, upon the debtor, thus discharged, subsequently coming into Louisiana. Civil Code, art. 3532.

The burden of proof is on the party pleading prescription. Hunter v. Martin, 135 La. 351, 65 So. 486; Starns et al. v. Hadnot et al., 45 La. Ann. 324, 12 So. 561; Pitkin v. Rosseau, 14 La. Ann. 511.

The defendant, J. L. Godcheaux, has failed to show that he came to Louisiana subsequent to his discharge as debtor under the statute of limitation of the place where the obligation was to be performed, so as to bring his defense within the purview of article 3532, Civil Code. No brief was filed by counsel for defendants, but we take it from the allegations in their plea of prescription that the defense urged was based on the provisions of that article of the Code.

The forms, the effects, and the ¡prescription of actions are governed by the law of the place where they are brought. Code Prac. art. 13.

The suit here is by a principal against its agent for a balance due on account. Such an action is not an action on open account prescribed in three years under the provisions of article 3538, Civil Code, but is a personal action prescribed in ten years. Cooper v. Harrison, 12 La. Ann. 631; Millaudon v. Lesseps, 17 La. Ann. 246; Means v. Ross, 106 La. 175, 30 So. 300.

No answer was filed contesting the correctness of the amount claimed; the only defense being one of prescription herein-above discussed.

We find no merit in that plea, and no error in the judgment rendered against defendants.


author: ELLIOTT, J.

text:
    No. 712
    First Circuit
    ELLIOTT v. POLICE JURY OF EVANGELINE PARISH
    (January 26, 1931. Opinion and Decree.)
    Williams & Blackshear, of Oakdale, attorneys for plaintiff, appellant.
    R. Lee Garland, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

W. D. Elliott alleges ownership and possession of the N. % of the N. E. % of section 16, T. 2, S., R. 2, West Louisiana principal meridian, containing 82 acr^s more or less, situated in the parish of Evangeline, La., and that the police jury of the parish of Evangeline has undertaken to go upon his land without any right-of-way through same, and without right to enter thereon, and open and work a road, in violation of his rights as owner of the land; that the road in question was not a public road. He brought suit against the police jury to restrain them from their said purpose.

The police jury, answering, claims that the road in question is a public road, and that the land over which it runs is in dispute between the parishes of Evangeline and Rapides, the locality being claimed by one parish and then the other; that the authors of plaintiff’s title, while the land in question was under the jurisdiction of the parish of ’Rapides, donated to the parish of Rapides a right-of-way over it for a public road;that the road was then recognized as a public road, traveled by the public, and worked and maintained as such by the police jury of both parishes; that said road has been kept up, maintained, and worked by authority of the police jury of the narish of Evangeline for more than three years; that the defendants therefore have the right to keep up and maintain the road.

A supplemental petition filed by plaintiff attacking the constitutionality of Act No. 220 of 1914 was not acted on in tfce lower court, and, not being .urged in plaintiff’s brief, we therefore do not consider it.

The district judge, for written reasons assigned, rendered judgment in favor of the defendants, refusing the injunction prayed for, and authorizing the police jury to proceed with the working of the road.

Plaintiff has appealed.

The plaintiff produces title as owner of the land in question, with possession from Alexandria Lumber Co., Limited, dated February 27, 1926, duly recorded in the parish of Evangeline, and which declares that the land is situated in the parish of Evangeline. It further states that all taxes due and exigible on the land for the years 1923, 1924, 1925 were paid, and that the purchaser assumed the taxes for 1926. We infer from the title statements that the taxes paid were paid in the parish of Evangeline, and that the property is situated in the parish of Evangeline.

The transcript contains what purports to be a copy of a petition brought by the parish of Rapides against Dave Elliott et al., with an order signed by one of the district judges of that parish, together with a citation from the Rapides court in the suit mentioned addressed to Sylvanus Elliott, but the papers do not appear to have been offered in evidence on the trial of the present suit in the parish of Evangeline.

No act of the Legislature of this state, no ordinance, resolution, or other act on the part of either the parish of Rapides or Evangeline, was produced, offered in evidence, or shown to have existed establishing the road in question as a public road, as required by law. Revised Statutes of 1870, secs. 2743 and 3369.

The section 2743 has been amended several times, but none of the amendments have relevancy to the questions at hand in the present case.

The defendants claim in their answer the benefit of an act of dedication on the part of the Alexandria Lumber Company, Limited, to the parish of Rapides for the purpose of establishing a public road over land in Rapides parish. The dedicating act does not state the particular lands over which the road was to run. It was to be' located by commissioners said to have been appointed for the purpose. The report of the commissioners was said to be attached to the act, but it was net-attached, and there is no showing that any road was ever laid out by any commissioners appointed for such a purpose. The act in question was never recorded in the parish of Evangeline.

Holmes Martin, witness for defendant, testifies that, pursuant to the dedication from Alexandria Lumber Company, Limited, in favor of the parish of Rapides, the parish of Rapides furnished him with dynamite to blow out the stumps, but no ordinance, resolution, or other act of the police jury supports his testimony.

Pierre Morein, witness for defendant and member of the police jury of the Fourth ward of the parish of Evangeline, testifies on the subect as follows:

"Q. Have you had occasion since you have been a member of the police jury, to work this road, or attempt to work this road?
“A. Yes, sir.
"Q. When did you first attempt to work this road?
“A. The first time I made an attempt to work the road was to open the road after they had stopped it up. That was my first attempt.
“Q. About how long ago?
“A. A year ago.”

The plaintiff, W. D. Elliott, testifies as follows (note testimony, page II):

“Q. How many times did you obstruct the road so as to keep them from working it?
“A. Every time they came out there. I asked them twice; two crews came there and I asked both of them not to work on my land.”

E. E. Elliott, son of the plaintiff, testifies that the road has not been kept up or worked, except at intervals; that his father, the plaintiff, fenced it up several times, and someone would come and break the fence; that his father then had trees cut down across it, blocking it up so that it remained closed at one time for about two years. And these interruptions seem to have been kept up ever since che plaintiff acquired the land in question.

The testimony of W. D. Elliott and of E. E. Elliott is corroborated by other witnesses for plaintiff, as well as by witnesses for the defendant.

The evidence shows that the road in question has not become public as a result of any dedication, consequently it cannot have become public, unless it has become such as the result of the provisions of the Revised Statutes of 1870, sec. 3368 (amended by Act No. 220 of 1914), which provides that:

“All roads in this State that have been * * * or shall hereafter be kept up, maintained or worked for a period of three years by authority of the Police Juries in their respective parishes, are thereby declared to be public roads * * etc.

The district judge says in his reasons for judgment:

“There is no doubt that plaintiff’s author, before selling the tract of land to him, had dedicated a public road through said land. The authorities in the Parish of Rapides went upon said land, cleared said road and worked it for several years before plaintiff acquired the entire tract. There is some question as to whether the land is in Evangeline or Rapides Parish, but in either event, When the plaintiff acquired, the road was there, and he admitted that the road was cleared and worked, to his knowledge, before he acquired it. Therefore the plea of prescription of three years, under Act No. 220 of 1914, interposed by the defendant is good and must be maintained by the court.”

We have already held that the road was not shown to exist as the result of the dedication alleged by the defendants, and, as to the conversion of the road in question into a public road by act of the police juries in keeping it up, maintaining and working it, the law requires that such must be done by the police jury of the parish in which the road is situated. In this case it was necessary for the road to 'have been opened, maintained, or worked by authority of the police jury of the parish of Evangeline for three years in succession, and it must have been done peaceably and without coercion exerted against the owner of the land. The evidence shows that this has not been done, and 'the road cannot therefore be regarded as having been established in any of the ways provided for by law.

The judgment appealed from is erroneous.

Eor the reasons stated, the judgment appealed from herein is annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that the road in question, in so far as concerns the land belonging to W. D. Elliott, to-wit, the N. % of the N. E. of section 16, T. 2 S., R. 2, West Louisiana principal meridian, containing 82 acres more or less, situated in the parish of Evangeline, is not a public road. And it is therefore ordered that the police jury of the parish of Evangeline be, and they are hereby, enjoined, prohibited, and restrained from entering upon said land for the purpose of working or maintaining said road thereon; the defendant and appellee to pay the costs in both courts.


text:
    No. 710
    First Circuit
    DENHAM ET AL. v. TAYLOR ET AL.
    (December 1, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Paul G. Borron and Jess Johnson, of Baton Rouge, attorneys for plaintiffs, appellants. ,
    Taylor, Puicer, Lorec & üroo^s, of Baton Rouge, attorneys for defendant, appellee.
    Sachse & Breazeale, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

Guy D. Denham and his wife are suing David H. Taylor and Joe D. Millender in solido for the sum of $23,-' 360 in damages for the death of their ^ daughter, Miss Annie Eunice Denham, which resulted from the collision, at the intersection of St. Napoleon and North Boulevard streets of the city of Baton Rouge, between a Ford coupe Millender was driving and a Dodge sedan which Robert C. Taylor, minor son of David H. Taylor, Jr., was driving.

The accident occurred between the hours of 12 and 1 a. m. on Thanksgiving Day, November 28, 1929.

Judgment was rendered for $5,000 in favor of plaintiffs against Millender, and dismissing the demand as to Taylor.

Plaintiffs and Millender appeal.

There was a dance at the community club in Baton Rouge on the night of November 27th, which Miss Annie Denham had been invited to attend by Clarence W. David, a young man of the city of Baton Rouge. David not having a car- to escort her to the dance, at his request, Millender agreed to call at her home to take her there in his car. They proceeded to her home in Millender’s Ford coupe, where David got down, and in company with Miss Denham came up to the car, was introduced to Millender, who drove them to the community club. Millender danced once or twice with her and left to get a young lady he was to escort to the dance. She was unable to attend, and Millender returned without her to the club. The dance having stopped for the usual midnight intermission, Millender again met David and Miss Denham and stated that he had failed to “get his date” with the young lady he intended to take to the club. At David’s suggestion he said he would be glad to take them for refreshments down town, to which Miss Denham promptly agreed. They got in Millender’s car, David on the right side, Miss Denham in the middle, and Millender on the left driving. As the place where they intended to get the refreshments was closed, they did not stop there, and Millender was heading back to the dance hall when the accident occurred $t the intersection of St. Napoleon street with North Boulevard.

North and South Boulevards run east and west through the city of Baton Rouge, along a neutral ground 69 feet wide, between the boulevards. St. Napoleon street, 29 feet in width, runs north and south at right angles across South and North Boulevards, and the neutral ground, continuing to the north across the North Boulevard driveway, and thereafter known under the name of St. Anthony street.

Millender drove his car around the state house into South Boulevard, going eastward up to St. Napoleon street, where he turned northward, crossed the neutral ground, and, when about the center of North Boulevard or perhaps a little beyond, north thereof, his coupe was struck on the rear right wheel and running board by the sedan Taylor was driving westward on North Boulevard.

It is contended by Millender that Miss Denham was with him as his guest, in a joint venture or common enterprise, and that he is not therefore liable to plaintiffs.

It is shown that Miss Denham had been invited to the community club by David, and, after being introduced to Millender, was taken in his car to the dance. It is also shown that during the intermission of the dance at the dance hall, at the request of David, Millender again voluntarily took them to his car, and started to the place where they expected to get refreshments. At no time does it appear that Miss Den-ham had anything to do with the movements of the car, or made the slightest suggestion as to the direction it should go. The fact is that Millender was a resident of West Virginia, had been a few weeks in Baton Rouge, and was directed by David in the operation of his car.

Huddy on Automobiles (8th Ed.), sec. 811, p. 966, gives the following definition of a joint venture:

“Parties cannot be said to be engaged in a joint enterprise unless there is community of interest in the objects or purposes of the undertaking; and an equal right to direct and govern the movement of each other with respect thereto. Each must have some voice and right to be heard in its control and management.”

In brief of counsel for Taylor, in which it is contended that Millender was negligent, and that his negligence should be imputed to Miss Denham, we are referred to section 644 (6th Ed.) vol. 1, Berry on Automobiles.

The reference there made is to two persons, friends going on a pleasure trip, "the one not owning the car getting it ready for the trip,” etc.

Here it appears that Miss Denham had been invited to the dance by David, and had made no arrangements whatsoever for a trip to the community club in the car of Millender, who was a stranger to her when he appeared at her home to take her there with David. When the intermission occurred at the dance hall, she was again invited by David to go down town for refreshments, and agreed to go in Millender’s car. At that time she certainly had been unexpectedly invited, and had made no preparation for a trip as a joint venture with either David or Millender.

The other reference of counsel is to Blashfield, Cyclopedia of Automobile Law, vol. 1, p. 1005. The rule referred to by the author therein applies when persons engaged in a common enterprise, one is injured in prosecuting it by the negligence of a third person and recovery will .be barred “if the injury was in a matter within the scope of the joint agreement.”

For the purpose of giving a practical illustration of that rule, the author refers to a case where the parties were using a truck owned by one of the parties “for the purpose of getting their winter’s supply of potatoes”; the negligence of the owner in such a case was in not having the tail light burning and was imputable to plaintiff. The fact that such parties had combined to get their supply of potatoes clearly indicates that they had engaged in a common enterprise, and that the negligence of one could be imputed to the other. The illustration above given is evidently suggestive of a partnership of interests or of a joint venture between the owner of the truck and the other parties.

Nothing of that character appears in the | instant case, where Miss Denham merely cordially acquiesced originally for a ride I to the dance hall, and thereafter during the intermission for a short drive to the place where the refreshments were expected to be enjoyed.

Miss Denham was simply Millender’s guest, and was not engaged in a joint venture or common enterprise, within the meaning of the definition of law writers on this subject, at the time of the accident in which she lost her life. Millender was” therefore not absolved towards Miss Denham from responsibility for negligence or imprudence. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253.

Under an ordinance of the city of Baton Rouge, drivers of vehicles • on North Boulevard street had the right-of-way. It is shown that Taylor was driving on North Boulevard westward towards the river, and ran into the rear end of the coupe Mil-lender was driving northward, at a point a little north of the middle of the intersection of that street with St. Napoleon or St. Anthony street; as hereinabove stated.

Millender testifies that he saw the sedan Taylor was driving when he was 15 or 30 feet from the south line of North Boulevard. The sedan, when he first saw it, was, he says, in one instance, about 75 feet from the intersection and in other parts of his testimony he fixes the distance at 100 and as far as 150 feet. He admits he could have stopped his car and allowed the sedan to pass, of which there cannot be the least doubt, considering the distance at which he had seen it before attempting to cross. That he saw the sedan even when it was 150 feet from the eastern corner of the intersection there can be no doubt, as there was no obstruction arising from the elevation of the neutral ground between the two boulevards, ■or from trees, buildings, or other obstacles, which could have affected his vision. Millender simply took a chance in attempting to cross North Boulevard, and either miscalculated the distance at which the sedan was from the corner of the intersection or the rapidity at which the sedan was traveling by which his coupe was struck.

Testifying at the coroner’s inquest, Mil-lender stated he was in St. Napoleon street when he saw the sedan, and was asked the following question:

“Q. You knew which street had the right-of-way?
“A. North Boulevard.”

At the trial, his testimony was couched in words which seemed to throw a doubt as to whether he knew when he testified before the’ coroner that North Boulevard was a right-of-way street, or had been informed of that fact after the accident.

At the coroner’s inquest he was testifying in reference to the collision, and then said he knew that North Boulevard was a right-of-way street. Obviously he was aware of that fact when the accident occurred. The proof is that Millender had been living in Baton Rouge for nine months in the fall of the year, and about six weeks when the case was tried, during the spring. He was driving a car which he needed in his business, and doubtless had familiarized himself with the traffic laws of the city of Baton Rouge, and knew that North Boulevard was a right-of-way street, as testified to by him at the coroner’s inquest.

The rule applicable to the situation presented when the collision occurred is well stated in Blashfield in his Cyclopedia of Automobile Law (1927) vol. 1, p. 499, see. 25, as follows:

“The priority of right of one driver imposes a corresponding duty on the driver having the inferior right of way to exercise a degree of care commensurate with the superior right of the other to ■ observe the car of the other, its speed, position and operation, and to wait until it has passed before attempting to cross the intersection.”

The foregoing rule was applied in the case of Buckner v. Powers, 12 La. App. 630, 125 So. 744. See, also, McCalmont v. Sterkx, 5 La. App. 730; General Exchange Ins. Corp. v. Morrow, 9 La. App. 487; De La Vergne v. Levy, 10 La. App. 768; Hubert v. Robichaux, 8 La. App. 789. We find it to be a sound and sensible doctrine which should govern in cases of this character.

If Millender, who had the inferior right-of-way, with proper care had observed the speed, position, and operation of the other car, he would have stopped or waited until it had passed the intersection before attempting to cross it. He did not observe the other car as he was required to do. did not exercise ordinary care, but proceeded across, negligently and carelessly, was clearly at fault, and was properly held liable in damages.

The defendant Taylor contends that Mil-lender was under the influence of intoxicating liquor at the time to the knowledge of Miss Denham; that, even if she was his guest, as she rode with him knowing him to be under that condition, she was guilty of independent negligence contributing to her death which bars plaintiffs from the right of recovery.

Millender testifies that he was not under the influence of liquor, and so does David. Two. or three witnesses testified that they smelled liquor on his breath, while others who were with him soon after the accident did not.

In a written statement made at the Lady of the Lake Sanitarium by David, who had been injured in the collision, to McClusky, adjuster of an insurance company that had given a policy on the Taylor car, David said that Millender had taken a drink or two before or at the dance, but was not drunk. David had suffered a fracture of the skull and' had been given opiates to alleviate his pains. He claims he was, when he made the statement, suffering, that his mind was not clear, and, as a witness at the trial, said that Millender had not been drinking that evening, and that, if he had made a contrary statement to McClusky, he did not remember it.

Let us say that Millender had taken a drink or tw.o as appears in the statement of David to McClusky. There is no proof in the record to show the kind of liquor he drank. It might have been light wine or other mild beverage, and, for aught we know, small drinks that could not possibly have intoxicated Millender, a heavy-set strong man, 27 years of age.

Let us go further and take it as proved that Millender had taken a drink or two of whisky or some other strong liquor of that nature, such a drink would not, in our opinion, have rendered him “incapable of safely or prudently driving a car,” so that Miss Denham could not have failed to notice his condition, and as a matter of law would have been negligent in voluntarily continuing to occupy his car, and ride with him, so as to bring this case under the rule recognized by Blashfield, Cyclopedia of Automobile Law, vol. 4 (1930 Supplement, p. 187) relied upon by counsel for Taylor.

There is no evidence in the record to indicate that Millender was driving the car in a reckless manner which could have suggested to Miss Denham that he was an incompetent driver or that he was under the influence of liquor. On the contrary, it is shown that, when he came to the intersection and drove across North Boulevard, and before, he was going 15 miles an hour, which was within the speed limit as fixed by ordinance of the city of Baton Rouge.

Taylor is urging this defense of the independent negligence of Miss Denham resulting from the alleged intoxication of Millender because he is sued with Millender in solido as a joint wrongdoer or tortfeasor.

The proof shows that by ordinance of the city of Baton Rouge the speed limit on the streets where the accident occurred was 15 miles an hour.

Taylor testifies, so does Miss Few, who was an occupant of his car at the time, that he was traveling when he was coming to the intersection and when he applied his brakes to avoid the collision at a speed not over 20 miles an hour. Taylor was therefore traveling, according to his own testimony and that of his lady companion, at a rate of speed five miles in excess of the limit fixed by the city ordinance.

Police officers of the city, it is shown, had given out a general permit to auto drivers to travel over the boulevards at a rate of 20 miles an hour which it seems, in their opinion, was to the benefit of customary traffic over those driveways. It is proper to say here, before going further in the discussion of this case, that this extension of the speed limit by the police officers could have no legal effect on the speed limit of 15 miles fixed by the city. It must therefore be held that Taylor was, according to his own admission, traveling at a speed in violation of the traffic regulations of the city.

Counsel for Taylor contend that, although the driver of an auto is exceeding the speed limit fixed by ordinance or statute, he cannot be held liable for negligence or contributory negligence unless the excessive speed is the proximate cause of the injury. He cites in support of that contention Rule v. Claar Transfer & Storage Co., 102 Neb. 4, 165 N. W. 883; Berry on Automobiles, sec. 230, p. 202, vol. 1.

He admits that in Buckner v. Powers, 12 La. App. 630, 125 So. 744, above cited, it was held that, if the driver is exceeding the speed limit, he is guilty of “negligence as a matter of law,” but contends, however, that such a statement by the court was an obiter dictum, and that a correct analysis of that opinion shows that it held to the doctrine which he contends is recognized in the cases upon which he relies as hereinabove cited. He also contends that the obiter dictum found in the Buckner case is opposed to the rule of law he invokes, and which he claims was recognized in the case of Lopes v. Sahuque, 114 La. 1004, 38 So. 810.

The doctrine urged by counsel was approved in general terms in that case but is more directly recognized in Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500; Smith v. Interurban Transp. Co., 5 La. App. 704; Hudson v. Jackson Brewing Co., 4 La. App. 549, and Berry on Automobile Law, vol. 1, sec. 230, p. 202, although, there are expressions in other cases of the Courts of Appeal which lead to a contrary conclusion. See Tolliver v. Checker Cab Co., 3 La. App. 278; Firemen’s Ins. Co. v. Brook Tarpaulin Co., 3 La. App. 502; Bianchi v. Mussachi, 1 La. App. 291.

In disposing of this case we will accept counsel’s contention that, though the driver is going at a rate of speed exceeding that which is permitted hy the ordinance, ne cannot be held liable unless the excessive speed was the proximate cause of the injury. The case will be considered under that rule while hearing in mind the rule which says that a driver on a right-of-way street is not absolved from the duty of exercising proper care and consideration for others. Standard Accident Company v. Mullor, N. O. Court of Appeal, case No. 8577. (See Louisiana & Southern Digest.)

The proof shows that North Boulevard, a right-of-way street on which Taylor was traveling,, is lit at night by what is commonly known as a “white way lighting system.” These lights, the evidence shows, were on when the accident happened. It is shown that there is a depression in North Boulevard at about 172 feet from its intersection with St. Napoleon street. By actual tests made it was clearly established that Taylor could have seen the lights of the Millender car at 100 or even 150 feet from the intersection as it was coming along northward on St. Napoleon street towards the intersection. Taylor seemed to intimate by his evidence that his vision was obstructed by a rise of the neutral ground of which we have spoken. The proof shows that its elevation above¡ North Boulevard could not have such effect, and that, if Taylor had merely glanced to his left at any distance from the intersection after he had passed the low spot 172 feet away, he would unquestionably have seen the Millender car. Under the law he must be held to have seen it. Kelly v. Schmidt & Ziegler, 142 La. 91, 76 So. 250.

If he had been going at 15 miles an hour, his car being 75 to 100 feet from the intersection, as testified to by Millender who was at that time not over 30 feet from the intersection, Millender would have easily negotiated North Boulevard street, only 29 feet wide, and would have escaped injury. The result would have been the same if Taylor had been moving at 20 miles an hour, the speed he claims, at which he was traveling. The proof shows by actual tests made on pavement that the Taylor car, if it was traveling at 20 miles an hour, even with one good brake, could have been stopped in 20 feet from the application of the brakes. Taylor says he was 10 or 12 feet from the intersection when he saw the coupe, and that he immediately applied his brakes, aLhough we may state here that there were no marks seen on the pavement to show that they had been applied. Taylor says his brakes were in good condition. If he had applied them at 10 or 12 feet from the coupe, even if he had had an open way, his sedan would have been stopped before it reached the west line of St. Anthony street or St. Napoleon, 29 feet wide, as was demonstrated by the tests to which we have referred. Instead of having a clear way ahead of him when he says he applied his brakes, Taylor’s car ran into the rear end of the coupe, knocked it westward 36 feet, turned it completely around, facing south, threw David and Miss Denham out of their car, and was found well beyond the western line of St. Napoleon or St. Anthony streets, and the crash of the impact was heard at one block away from tbe scene by Zernot, wbo was driving in the direction of the wreck when it occurred. The coupe was badly damaged, and the sedan was considerably injured, requiring repairs of $67 on the coupe, and $68.39 on the sedan.

These physical facts are of such a character that we are forced to conclude that Taylor was traveling at not less than 30 miles an hour when he applied his brakes, if he did as claimed by him. We are also referred to the cases Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253, and Hutchens v. Morgan, 12 La. App. page 545, 125 So. 309, in which damages claimed by a guest against the driver of an auto were denied. In the Jacobs case, .though the court said that the guest or licensee was not entitled to the consideration due by a carrier to a passenger for hire, it held, however, that the guest was entitled to the benefit of the provisions of article 2315, Civ. Code, that any act of negligence or imprudence that causes injury or loss to another obliges him who was at fault to pay for the loss or injury. The court found in that case that the defendant was not guilty of negligence and was not at fault.

Here the contrary appears, as both defendants were at fault for the reasons above stated.

In the case of Hutchens v. Morgan, the court inclined tq the conclusion that plaintiff was not a guest, but, conceding that he bore that relationship to the driver of the car, the court said that plaintiff was a companion and guide of the driver, as he was more familiar with the route, that he knew he was driving at an excessive speed, which was the cause of the accident, and that plaintiff made no protest, intimating at the same time that, if he had, Gibbs, the driver, would have heeded the advice.

There are no facts of that character in this case, as appears from the reasons given by us in the beginning of this opinion, which show that Miss Denham was purely a guest, was in no sense a guide to Mil-lender, the driver, did not in any way direct the movements of the car, and had no control whatsoever over it, and was not engaged in a joint venture or common enterprise. The case of Hutchens has no application to the facts of this case.

Millender and Taylor were therefore both at fault which was the proximate cause of the injury. It was their concurrent negligence which caused the death of Miss Denham, an innocent third party.

The defendants were tort-feasors or wrong-doers, and are responsible in solido; plaintiffs having the right to recover from either or both. Shield v. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080; Whipple v. Lirette, 11 La. App. 485, 124 So. 160, concurring opinion.

The lower court allowed $5,000 damages against Millender only. The judgment is affirmed in that respect, as we find this allowance fair, and should not be increased as asked by plaintiffs. It must be reversed insofar as it rejects the demand against Taylor, and must be amended by decreeing the judgment in solido against the two defendants.

It is therefore ordered, adjudged, and decreed that the judgment rejecting the demand against Taylor is hereby reversed; it is further decreed that (plaintiffs have judgment against David H. Taylor, Jr., and Joe D. Millender for $5,000 in solido, with legal interest from judicial demand, and, as thus reversed and amended, the judgment be affirmed.


author: MOUTON, J. ELLIOTT, J.

text:
    No. 707
    First Circuit
    SPARKS v. HANAGRIFF
    (December 1, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Hermann Moyse, of Baton Rouge, attorney for plaintiff, appellant.
    B. R. Miller and J. Y. Sanders, Jr., of Baton Rouge, attorneys for defendant, - appellee.
   MOUTON, J.

At the request or invitation of Mr. Hanagriff, defendant, Miss Sparks, plaintiff, Miss' Pitts, and Mr. Smith, Sunday morning, June 16, 1929, had gone out on a fishing trip a few miles from the city of Baton Rouge. On their way back, about 4:30 in the afternoon, while driving over the Port Allen highway, the auto in which the parties were riding was turned over and was practically demolished. Miss Sparks was severely injured, and brings this suit for- damages against Mr. Hanagriff, who was driving the car.

The lower court rejected the demand, Miss Sparks appeals.

The defendant, it is shown, passed ahead of several cars, and, in trying to pass ahead of an auto which Mr: Gunn was driving, defendant’s auto ran into some loose gravel, causing it to capsize, and inflicting the damages complained of.

Hanagriff, the defendant, says that Mr. Gunn was ahead of him; that, when approaching his car to pass ahead, he blew his horn twice; that Mr. Gunn was driving practically in the middle of the road and swerved to his right; that he had “plenty of room to go by him,” but that Mr. Gunn abruptly turned his car to the left, and, to avoid hitting him, he then swerved his auto to the left, and, in attempting to straighten his car, he applied his brakes, the ear went into the ditch and was overturned.

Defendant says he had 10 or 12 feet to pass on the left side of the .Gunn auto of which there was about 3 feet of loose gravel, extending from the ditch to the hard surface part of the gravelled roadway. He was traveling, according to his testimony; between 40 and 45 miles an hour.

Mr. Gunn says he was coming toward Port Allen; he imagines between 40 and 45 miles an hour, that he was first apprised of something behind him by a scuffling noise in the gravel, when one of the ladies who was riding with him said: “My God! There is a car turned over.”

He testifies positively that he did not hear the sounding of a horn by Hanagriff, and he is also certain that he was traveling at the time on the right side of the road. He was then asked the following questions, and gave the answers thereto, which we shall quote:

“Q. Did you at any time leave the right-hand side of the road?
“A. Not that I remember.
“Q. Ought not you to remember that proposition?
“A. Yes. If I had seen anything to cause me to swerve I would remember it.”

After counsel stated to him that he wanted to know definitely whether he had veered over into the left side of the road, Mr. Gunn said:

“No, sir, not to the left side of the road. I was driving on the right.”

After he had stated that he had “plenty of room” to pass without running into the loose gravel, counsel then propounded to him this question :

“Q. Mr. Hanagriff has just sworn that you turned sharply to the left and ran into the left side of the road. What have- you to say to that?
“A. I don’t think I did.”

Then upon being asked if he was not positive that he had not veered to his left side, abruptly, he answered, “Yes”; he was.

It will be observed that Mr. Gunn was certain that he had not heard Hanagriff blow his horn, and was positive that he was driving on the right-hand side of the road. He was, however, in doubt, at first, and could not remember if he had at any time left the right-hand side and as to whether he had seen anything ahead to cause him to swerve to his left. Again when he is asked if he had turned to his left, he answers: “I don’t think I did.” He finally, upon being pressed by counsel for plaintiff, gives definite answers to the questions asked, as hereinabove stated.

Then again, when asked if a lawyer had not advised him that he could be held liable if he had caused the accident, he answers :

“I don’t think he di.d; I do not remember.”

Mr. Smith, witness for plaintiff, was sitting on the back seat of the Hanagriff car. He says:

“•When I noticed anything in particular was when Mr. Hanagriff applied his brakes, and the ear was very near the car he was attempting to pass.”

He testified that, as he was sitting on the rear seat, he could not say if the Gunn car had abruptly turned to che left, and that he was not paying any attention to what was going ahead. There is nothing in the foregoing statement of that witness to contradict the testimony of Hanagriff, above quoted, to the effect that Gunn had abruptly swerved to his left, which compelled him to apply his brakes, and caused the turnover in the loose gravel. The fact is that Smith said in his testimony that, when Hanagriff’s car was near the other when he was attempting to pass ahead of it, that he applied his brakes, and that the rear portion of his car was tangled up in the gravel, and rolled over in the ditch. This latter statement agrees precisely with the way Hanagriff described the capsizing of his car.

Counsel for plaintiff, after stating to his witness Smith that he presumed he had heard when Hanagriff had said that Gunn’s car swerved to the left just as he tried to pass, asked Smith if that was correct? Smith answered:

“As to whether it abruptly swerved to the left or not I could not say: but I do know that when Mr. Hanagriff applied his brakes there was not so much clearance for him to get by.”

Here it will again be noted that he does not contradict the statement made by Hanagriff that Gunn turned to his left. The following part of Smith’s foregoing reproduced statement must be observed where he says that when Hanagriff applied his brakes, “there was not so much Clearance for him to get by.” The proof above referred to from both Hanagriff and Gunn shows that both had “plenty of room” on . either side of the roadway to operate their respective cars. As Smith says that when Hanagriff applied his brakes he did not have so much “clearance to get by,” it is logical to conclude that Gunn had turned his car to the left side and was obstructing his passage. Smith could not say that he had turned abruptly, but his testimony is corroborative of Hanagriff’s statement to the effect, at least, that Gunn had swerved to his left.

Miss Sparks, plaintiff, says she had not particularly noticed the Gunn car, and could not say if it had swerved ahead of the Hanagriff car prior to the impact.

Miss Pitts, the other occupant of the Hanagriff car, did not testify in the case.

Mr. Smith testified that Mr. Hanagriff sounded his horn several times, but could not say if he had for the Gunn car, and said:

“I rather think he did.”

Miss Sparks testified that she could not say if Mr. Hanagriff had blown his horn for the Gunn car.

Mr. Hanagriff says that he blew his horn twice on approaching the Gunn car, Mr. Smith says he blew it several times before in passing other cars, and Miss Sparks says she could not say if he had or not, and Mr. Gunn says he did not hear it.

The preponderance of the evidence is therefore, in favor of Mr. Hanagriff on this question, and it must therefore be held that he sounded the horn. If the lower court so believed — and there is nothing to indicate it did not, certainly not from the judgment rendered — on such an issue of fact, it is not for us to say that there was an error in its finding.

The vital issue in the case is as to whether Gunn suddenly turned his car to the .left and compelled Hanagriff to apply his brakes, and, in attempting to straighten his car, ran it into the loose gravel, thus causing the accident.

Hanagriff is very positive that Gunn acted in the manner stated, which he says by his fault was the proximate cause of the accident.

Smith, though he could not state that Gunn abruptly turned his car to the left, said, as we have before remarked, that he had not left much clearance on the left side of the roadway for the passage of Hanagriff’s car.

The answers on these vital questions were reluctantly given by Gunn and are of such a character that the lower court must have accepted the version of the occurrence as related by Hanagriff, and indirectly supported by the testimony of Smith. The court, we must assume, found that the barring of the passage of Hanagriff’s car by Gunn was the proximate cause of the accident.

Under the provisions of Act 296, 1928, p. 628, Hanagriff had the right to travel on the Port Allen highway at the rate of 45 miles an hour, particularly during the daytime. The fact is that Gunn was, according to his own statement, traveling at about that rate of speed. The proof is that Hanagriff had passed other cars before he reached Gunn’s car.

Mr. Hogue, one of plaintiff’s witnesses, says Hanagriff passed ahead of him like a flash, but this answer had been adroitly suggested to him by counsel’s question.

Miss Graham, another witness for plaintiff, says defendant blew his horn, that she pulled over to her right, and that he was going about 40 or 45 miles an hour.

It is shown that Hanagriff had been admonished by one of the occupants of his car that he was going too fast, that he had heeded the advice, had slowed down, and thereafter resumed his speed.

Miss Sparks estimated his speed at the time of the accident at 55 miles an hour.

The proof is that he had caught up with the Gunn car when, in trying to straighten his car, it rolled over in the ditch, as hereinabove explained. It is therefore fair to conclude that he had speeded up his car to about 50 miles an hour, as he had caught up with the Gunn car, which was going between 40 and 45 miles.

He was therefore traveling at a speed exceeding by about 5 miles the limit fixed by our statute on the subject.

Berry on Automobiles (6th Ed.) vol. 1, sec. 230, p. 202, says:

“That although an automobile may be traveling at a rate of speed prohibited by law, unless the excessive speed of the car was the proximate cause of an injury complained of the owner is not liable for such negligence.”

In section 227, same volume, this author says that the mere proof that defendant was violating the law “raises, no presumption that his' negligence proximately caused the injury.”

In Hudson v. Jackson Brewing Company, 4 La. App. 549, the court held that a speed exceeding the maximum permitted by a city ordinance is not “negligence per se, and when it appears that the excessive speed was not the cause of the accident no liability in damages arises therefrom.”

This, principle was recognized in Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500; Smith v. Interurban Transp. Co., 5 La. App. 704.

Driving at a rate of speed exceeding the statutory limit, as we understand the law, is not in itself determinative of responsibility. The fault or negligence which is the proximate cause of the accident or injury is the criterion of liability in such cases.

In arriving at this conclusion, we have not lost sight of section 5 of Act 296 of 1928, where it says that a driver of a vehicle on the highway, in regulating his speed, must have due regard to the traffic, surface, and width of the highway.

Here it is shown by both Hanagriff and Gunn that they had ample room on each side of the highway for the safe passage of their cars, with due consideration of the fact that there was about 3 feet of loose gravel on the side of the roadway. In connection therewith we may state that there is no proof that the traffic on the highway at that time nor the condition of the surface of the road could have caused the apprehension of any danger which could have arisen from such' factors. The fact is that defendant, before getting to the Gunn car, had successfully passed other cars, and without apparent danger or trouble as far as the record discloses.

The clear-cut issue is ■ as to whether defendant’s way was blocked by the turn to the left of the Gunn car. There is no suggestion or intimation in the pleadings of any concurrent negligence on the part of defendant and no proof to that effect. The preponderance of the evidence shows, as hereinabove stated, that Gunn was at fault when, by veering to his left, he barred defendant’s right of way, and that his negligence was the sole proximate cause of the accident.

The solution of this issue depended altogether on questions of fact in which the credibility of some of the witnesses played an important part. On such issues the appellate courts will not interfere except in cases when the lower court has fallen into a manifest error which we fail to find in this case. On the contrary, we find that the preponderance of the evidence supports the judgment dismissing plaintiff’s suit, and it is therefore affirmed, with cost.

ELLIOTT, J.

(dissenting). As stated in the opinion of the majority of the court, Miss Sparks, the plaintiff, was injured as the result of an effort on the part of Hanagriff, defendant, to pass an automobile ahead of him which was being driven by a Mr. Dunn.

Mr. Hanagriff, accompanied by the plaintiff, as her host and escort, and by another young couple, were on their way home from a trip made in his automobile, driven by himself.

The duties of a host toward his guest, as summarized in Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 993, L. R. A. 1917F, 253, are as follows. (I quote from the syllabus):

“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 of 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 addition to the duty as above recognized and based on the Civil Code, we have the statutory, provision Act 296 of 1928, sec. 4:

“Arty person who drives any vehicle upon a highway carelessly and heedlessly in willful or wautou disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger any person or property, shall be guilty of reckless driving,” etc.

Section 5(a):

“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.
“(b) Subject to the provision (a) of this section and except in those instances where a lower speed is specified in this Act, it shall be prima facie lawful for the driver of a vehicle to drive at a speed not exceeding the following but in any case when such speed would be unsafe it shall not be lawful.”

Then under paragraph 8 it is said:

“Forty-five miles an hour under all other conditions.”

Hanagriff, after passing some cars, overtook and came up behind Mr. Dunn, who, when overtaken, was himself driving from 40 to 45 miles an hour. To overtake him, Hanagriff was necessarily going faster than 40 or 45 miles an hour and faster than the law permits.

Defendant, upon coming up behind Dunn, blew his horn to notify him, as he was near the middle of the road, to' get over to the right, so that he (Hanagriff) could pass to the left of him.

Dunn testified that he did not hear defendant’s horn and did not know that he was behind him; that the first he knew about it was when somebody in his car called out that a car had overturned, etc.

It appears, however, that Dunn, while defendant was behind him, and while going as above stated, did move over to the right, apparently responsive to defendant’s horn, upon which defendant undertook to pass him, and, while defendant was going no doubt at his utmost speed and likely between 50 and GO miles an hour, because, if going at any less speed, he could not have passed except after running on the left-hand side of the road and parallel with Dunn for too great a distance for safety, it appears that Dunn moved back toward the middle of the road, which immediately created a danger, and defendant, to avoid, he says, stinking Dunn, sought to stop, and for that purpose applied his brakes, upon which his car became uncontrollable, one of his wheels got into the ditch, another in loose gravel, with the result that his car overturned, injuring the plaintiff.

What impresses me is the reckless, willful risk and chance which Hanagriff took in trying to pass a car going from 40 to 45 miles an hour by speeding up fast enough to run by it, when he did not know at the time whether the driver of the car he was about to try to pass had heard him and had swerved to the right fcr the purpose of making room for him to pass or not. He no doubt thought it had been done for that purpose, otherwise he would not have attempted to do as he did, but he did not know it, and in justice to his guest and in the discharge of that due care which she had a right to expect of him as her host and the driver of the car, he should not have exposed her to the peril and risk of the chance, going at such unusual speed, that the driver ahead had not heard him and might, unaware of Eis presence behind and that he was endeavoring to pass him, turn back to the middle of the road and thereby bring about the overturning of defendant’s car.

The situation called on defendant to wait and take no chances at the speed he was compelled to drive in order to pass Dunn. He should have waited until he could see that the passing could be accomplished, without placing his guests in involuntary peril and jeopardy of losing their lives or suffering great bodily harm. Defendant did not take an ordinary risk such as may be regarded as incident to careful and prudent driving, but he willfully ventured to do a dangerous thing which under the circumstances and situation was. perilous in the extreme.

It must be considered that, when plaintiff trusted herself to his care, ■ she did so with the understanding that he would drive carefully and not subject her to such un: necessary risks as his effort to pass this car involved her in. The law section 14(a) provides:

“The driver of any vehicle overtaking another 'vehicle proceeding in the same direction shall pass at a safe distance to the left thereof,” etc.
“(b) The driver of any overtaking, motor vehicle * * * shall give audible warning with his horn,” etc.

Section 15 (a):

“The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible,” etc.

These provisions should be applied in harmony with the provisions in sections 4 and 5 requiring “due caution and circumspection,” driving at all times at a “careful and prudent speed,” having due regard to the conditions, then existing. All the provisions of the act in question intend care and prudence in driving and speed, and which, according to my conclusion, the defendant did not observe on the occasion in question.

It does not seem to me to be proper to excuse the defendant under the showing made in this case by finding that Dunn blocked the way and was at fault for having done so, and that his negligence was the sole and proximate cause of the accident, when the primary fault was defendant’s attempt to pass Dunn, under circumstances which made it imprudent and reckless to do so. Dunn is not a party to this suit. If he had been made a party, it may be that he would have clearly shown that he did not know that Hanagriff was behind him and trying to pass, him, and, if he did not, then he was in no way at fault for moving back toward the middle of the road at the speed he was going. The question, of course, is whether defendant was at fault, and if his car was overturned as a result of his fault in driving and attempting to pass a car ahead of him at such speed as was necessary for him to drive in order to pass, and when in order to pass he was compelled to drive at such speed that his car could not be controlled when he discovered that he was. about to be struck by the car he was endeavoring to pass, and to escape being, struck it was. necessary to stop after he had gotten himself into such a place that it could not be done in safety.

The plaintiff was greatly injured, and I think it appears to have been manifestly due to the fault of the defendant. I therefore dissent.


author: LeBLANC, J. MOUTON, J,

text:
    No. 544
    First Circuit
    NONA MILLS CO., LTD., v. W. W. GARY LUMBER CO.
    (April 15, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Granted Restricted to Plaintiff’s Right to Appeal.)
    (January 26, 1931. Opinion and Decree on Rehearing.)
    Thompson & Ferguson, of Leesville, attorneys for plaintiff, appellant.
    A. B. Cavanaugh, of Leesville, attorney for defendant, appellee.
   LeBLANC, J.

This is a suit for damage for trespass which the plaintiff charges the defendant with having committed in bad faith and without any right whatsoever, by going upon its property in the S. W. % of the N. W. % of section 13, township 2 N., range 10 W., in the parish of Vernon, and having tortiously and without its consent cut and removed therefrom 35,790 feet of hardwood timber. The damages asked for amount to $1,071.60, that being the value of the timber in its manufactured state at the price of $30 per thousand.

The defendant denies the trespass and avers that, if it did remove any timber from plaintiff’s property, it did so in good faith, and, if plaintiff is entitled to recover any damage, it should be limited to the stumpage value of the timber. It then sets out its purchase .of the timber from one Elias P. Franklin, who is alleged to have warranted title, and asks that he be called in warranty, and, in case judgment oe rendered against it, that it recover a like judgment against Franklin.

At the inception of the trial, there was an admission entered in the record that the plaintiff was the owner of the land and timber involved in the suit, and this was followed by a tender on the part of the defendant of the sum of $125.44, that being the stumpage value at $8 per thousand feet for 15,680 feet, the quantity of timber it claims was taken.

It will thus appear that the only question to be determined is that of good or bad faith on the part of the defendant.

The lower court awarded judgment in fa-' vor of the plaintiff in the sum of $286.32, the stumpage value of 35,790 feet at $8 per thousand, holding that the defendant was not in bad faith. It dismissed the call in warranty against Franklin on an exception of no cause of action, reserving to the defendant the right to proceed against him in another suit.

The plaintiff alone has appealed, asking that the judgment be • increased to the amount originally prayed for.

On the question of the quantity of timber that was taken from plaintiff’s land, we fully agree with the district judge that the scale by plaintiff’s witnesses should be accepted in preference to that of the defendant’s. Three men sealed it together for plaintiff, all three being experienced men in that kind of work, who used the Scribner-Doyle scale of measurement, generally recognized by the courts of this state. Only one man scaled it for the defendant, using a different form of measurement. The difference in the result is too great to go into any comparisons, and, for the reasons already stated, we will accept the finding of the lower court on this point. The scale made by plaintiff’s witnesses showed 3,181 feet more than the amount claimed in its petition, but of course it can only recover for the amount prayed for.

On the question of defendant’s good or bad faith, we have to disagree with the trial judge and hold that the entry on plaintiff’s land and the cutting of its timber by the defendant was in moral bad faith.

E. P. Franklin, who owned this timber, had 160 acres of it which he wanted to sell. Defendant seemed anxious to buy it. There had been previous negotiations between them, in one of which a man by the name of Brown, representing them, had been shown the lines between the two properties by Franklin. On this occasion, D. D. Dodd, their representative, who finally closed the deal, was there with Brown, but did not go over the property and was not shown where the line was. It must be borne in mind, however, that Brown was also their representative at the time, and he had this knowledge. There is no doubt that there was an old, well-established line between the two properties. The government markers on the section corners could be located and the bearing trees and stubbs gave evidence of the line. Several witnesses were very familiar with it, and most all of them knew that there was this old, well-defined line.

In 1926, about the time defendant began cutting the cimber they had bought from Franklin, a new line was. blazed about sixty or seventy yards north of the old line, on the plaintiff’s property. Defendant attempts to defend its action in trespassing on plaintiff’s land by trying to make it appear that Franklin had blazed this new line, and that was the line they were to be guided by. Franklin, however, denies that he ever blazed it, and, as far as the record shows, no one knows who did. Certainly the plaintiff would not have blazed it and thereby incur the loss of that much land with valuable timber on it. Can it be then that the defendant, the only remaining party interested in the line, was the ■one who blazed it? If they did, there must have been some motive prompting them, for it is difficult to believe that such general knowledge about the old line as existed in the community could have escaped altogether their notice and attention. Stronger than all this, however, after they had crossed over about twenty or thirty yards on the plaintiff’s property and had cut its timber, a man by the name of Richardson, who was familiar with the line, informed Mr. Dodd, their agent, that they were on plaintiff’s property. This is uncontradicted. Even this warning, however, did not urge them to make further inquiry, and they continued cutting the timber up to the newly blazed line. If their intention in the whole matter is. to be judged by their action after this definite and positive information, it would be hard indeed to acquit them of the charge of being in moral bad faith. If they did not know where the true line was, it was because they did not choose to know.

"A person who enters upon the land of another, and appropriates the timber thereon, under circumstances justifying the conclusion that, if he did not know that he was without right so to do, it was because he did not choose to know it, is a mere trespasser and depredator, and is liable in damages." Sanders v. Ditch et al., 110 La. 884, 34 So. 860.

The defendant, being a trespasser, in moral bad faith, has to pay damages, the measure of which, as fixed by the Supreme Court, is the value of the timber in its manufactured state without deducting the cost and expense of manufacture. Allen v. Frank Janes Co., Ltd., et al., 142 La. 1056, 78 So. 115.

As has already been stated, the evidence shows, that there were 3,181 feet more of timber taken than is claimed in plaintiff’s petition, and the price proven is also greater than that which is demanded. However, plaintiff is bound by the demands in its pleadings, and judgment cannot be rendered for a greater amount than is prayed for.

It is therefore ordered, adjudged, and decreed that the judgment herein appealed from be, and the same is, hereby amended by increasing the amount thereof from the sum of $286.32 to the sum of $1,071.60, with legal interest from judicial demand until paid, and, as thus amended, that it be affirmed.

For former opinion, see 127 So. 425.

ON APPLICATION FOR REHEARING

MOUTON, J,

A rehearing was granted in this case to be restricted to the question of plaintiff’s right of appeal.

The district court rendered judgment herein against defendant company, which was amended by this court, 127 So. 425,,by increasing the amount decreed below in favor of plaintiff.

The defendant company thereupon filed a motion for a rehearing alleging that this court was without jurisdiction because there was no order of appeal granted by the trial court to plaintiff, the appellant.

The record shows that an order for an appeal was granted to defendant company but which did not perfect the appeal by furnishing bond, and hence did not prosecute it in this court. On the other hand, the record shows that no order of appeal, either for a suspensive or devolutive appeal, was granted to plaintiff company which, however, furnished an appeal bond, and appeared as the only appellant here.

On the original trial in this court no motion to dismiss the appeal was filed by defendant for the want of an order of appeal to plaintiff company, this court failing to notice the lack of this sacramental requirement, heard the case, and rendered judgment increasing the amount allowed plaintiff, as hereinabove stated.

In Gibson v. Selby, 2 La. Ann. 628, our earliest cases in reference to the indispensable necessity of an order of appeal from the trial court to invest the appellate court with jurisdiction, the court used the following language:

“Consent of parties cannot dispense with the necessity of an order allowing an appeal. Per Curiam: The jurisdiction of the appellate court attaches only after a judicial order, divesting, when its terms aro complied with, the jurisdiction of the inferior tribunal.”

Obviously, if there be no such judicial order of appeal, though a bond be furnished by appellant, there is not divestiture of jurisdiction in the inferior tribunal, and consequently the jurisdiction of the appellate court does not attach.

In the case of Gagneaux v. Desonier, 104 La. 648, 29 So. 282, our jurisprudence in that question up to that time was. fully and elaborately reviewed. The doctrine announced in Gibson v. Selby, 2 La. Ann. 628, above referred-to, was fully approved, and so was a large number of adjudications to the same effect.

In this case, it is true that an appeal bond was furnished by plaintiff, but this could have no effect in sustaining the right of appeal because of the want of an order of appeal.

The correctness of this statement is made clear by the ruling of the court in McKnight v. Denouvion, 22 La. Ann. 373, in which the court said:

“We find no order of appeal in the record. The mere filing of a motion for appeal with an appeal bond, does not divest the court below of jurisdiction and invest the same in this court. The order of appeal is essential,” etc.

In this case, not only there was no order of appeal, the fact is there was no motion for such an order, but, even if such a motion had been made, and though the bond was furnished, no divestiture of jurisdiction would have taken place below, because of no order, and consequently there would be no possible investiture of jurisdiction in this, the appellate court.

Counsel for plaintiff refers us to decisions where appellees, by appearing in the appellate courts without objecting to irregularities in the order of appeal or in the appeal bond furnished, were held as having waived or abandoned their right to obtain dismissal in such cases.

The court in Gagneaux v. Desonier, 104 La. 648, 29 So. 282, in its review of the many decisions there cited, recognized this rule of waiver or acquiescence where the objection is directed against some irregularity or informality in the order of appeal or bond. The court, however, in that case, makes a distinction between cases where there are such defects or irregularities and the cases where there is no order of appeal. Where there is no such order, the case here, the objection is jurisdictional, and the court will on its own motion dismiss the appeal.

In the case of Untereiner v. Miller, 29 La. Ann. 435, the delay for the taking of an appeal was extended by agreement of counsel. The court held that the right to the appeal expired in one year, and that the term for appealing fixed by law could not be extended by agreement of the parties. On this subject it said:

“No consent of parties can give this court jurisdiction or enlarge its powers.”

Further it says the court will take notice of its want of jurisdiction, although the parties are willing and consent not to raise any objection.

There was no such extension of the delay to an appeal by agreement of counsel in this case, but the above case is referred to because the court in Lafayette v. Farr et al., 162 La. 385, 110 So. 624, 626, in the course of the opinion, says, in referring to Untereiner v. Miller, above cited, that “therefore the ruling in Untereiner v. Miller et al., is in accord with the settled jurisprudence that, if there is no order of appeal from the court of original jurisdiction, the appellate court has no jurisdiction over the case and must dismiss the appeal on the court’s own motion, even if the appellee waives his personal .objection to a decision of the case on its merits.”

No stronger or more emphatic language could have been used in recognition of the rule that, when there is no order of appeal, the waiver of personal objections by the appellee, or the consent of the litigants, cannot invest the appellate court with jurisdiction to try the case on the merits.

In Untereiner v. Miller, 29 La. Ann. 435, the time to appeal had expired, and the right as to it had ceased to exist. No one would hardly contend that the appellate court could in such a case have jurisdiction. That case was in Lafayette v. Farr et al., 162 La. 385, 110 So. 624, assimilated to a case where, for want of an order of appeal, the right to appeal does not exist. In such cases the appellate court has no jurisdiction whatsoever over the merits, even where the appellee waives his personal objections, as was said in Lafayette v. Farr et al., 162 La. 385, 110 So. 624, hereinabove referred to.

It therefore follows, from our analysis of the decisions which have extensively treated of this subject, we had no jurisdiction to authorize the judgment rendered increasing the allowance below, because of the total want of an order of appeal, and for that reason our judgment is null and of no effect, must be so declared, and the appeal by plaintiff be dismissed.

It is therefore ordered, adjudged, and decreed that the judgment so rendered by us be, and is hereby, declared to be null and of no effect, and that the appeal of plaintiff company in this case be, and is hereby, dis-. missed, at its cost.