author: MOUTON, J.

text:
    No. 830
    First Circuit
    NEWSTADT v. MOTOR FREIGHT LINES, INC.
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    George J. Ginsberg, of Alexandria, attorney for plaintiff, appellee.
    C. A. Peyronnin, of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

Near Hopevilla, parish of Ascension, in July, 1S29, plaintiff suffered personal injuries and damages to an auto he was driving, for which he is claiming $10,000 damages in this suit from defendant company. Hé recovered judgment against defendant for $2,500, from which this appeal is taken.

The Port Vincent road runs into the Jefferson Highway near Hopevilla. At the junction or intersection of these two roads a collision occurred between a truck with a trailer thereto attached, which Benton, an employee of defendant company, was driving, and an Oldsmobile plaintiff was driving. The truck was going southward on the Jefferson Highway while the auto was moving northward on the Port Vincent road. The accident happened at about the_ noon hour on a bright day.

There is about equal traffic on the Jefferson Highway and the Port Vincent road, the latter being kept up by the state highway department. The Port Vincent road was therefore not a private road or drive which under section 21, Act No. 296 of 1928, p. 628, would have given the right of way to vehicles traveling on the Jefferson Highway.

Much testimony was taken in reference to a stop sign at or near the entrance of the Port Vincent road into the Jefferson Highway. The proof on that subject fails to show that such a sign existed at the time of .the accident. Besides, the evidence shows that plaintiff, before reaching the highway had slowed down his speed from about 25 miles an hour to 15.

Easterly, of the Louisiana state highway police department, testified that, if the rules are followed by drivers, the intersection is large enough .to handle traffic, and, in illustration of his idea, said, in referring to the intersection, “you could turn a freight train in there.”

Benton, driver of the truck, and plaintiff, of .the auto, both saw each other before entering the intersection, and there is no proof showing which entered first. They were both familiar with the locality; and most' probably got into the intersection knowing that there was ample room for them to pass each other in safety, and no doubt were correct in that respect if they “followed the rules,” as was said by the traffic officer, Easterly.

The solution of this case falls under section 18 of Act No. 296 of 1928, which reads as follows:

“Except as otherwise provided in this section, the driver of a vehicle intending to .turn to the right at an intersection shall approach such intersection in the lane for traffic nearest to the right-hand -side of the highway, and in turning shall keep as closely as practicable to the right-hand curb or edge of the highway, and when intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest the center line of the highway and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left.”

C. W. Brown, a disinterested witness, saw the collision. His testimony is that .the truck which was going south from Baton Rouge entered the intersection about the center of the Jefferson Highway, and wanted to turn into the Port Vincent road, that it was pulled to the right, leaving .the trailer at an angle “cross ways the road.” He says plaintiff, who was coming northward in the intersection from the Port Vincent road, found his way blocked by the truck, and could not possibly make a turn .to his right to get across the intersection.

Louis Moore, another disinterested witness, who also saw the accident, says, when plaintiff found himself in that predicament, he tried to pass on the left of the truck, that the truck “cut to the right,” and that plaintiff had to whip back to his right to escape the crash, and, when he tried to do that, the truck, struck the rear of plaintiff’s. car.

Plaintiff testifies that the truck was coming on its left side of the road, and that, to avoid the collision with the trailer that was blocking the intersection on his right, he made a turn to his left to avoid .the collision, and that at the same time the truck attempted to go to its right side, which resulted in the impact. His testimony is in harmony on this point with the evidence of the two disinterested witnesses to whom we have hereinabove referred.

The record shows that plaintiff, as he approached the intersection, slackened his speed to about 15 miles an hour, and in .turning at the intersection kept closely to the right-hand curb or edge of the highway, as it was incumbent upon him to do under, the provisions of section 18, Act No. 296 of 1928.

It is admitted by Benton, driver of the truck, that he intended to turn into the’ Port Vincent road on his way to New Orleans. In order to make that turn, he should have kept to his right, and should have continued in that direction beyond the center of the intersection before “turning his vehicle to the left,” as is required in such cases by section 18 of that act. Instead of following that course, as required by that statute and by the dictates of common prudence, he got oh his left side of the intersection, blocked the line of travel to which plaintiff was entitled, and then suddenly darted to his right, and in that manner caused the collision.

Two or three witnesses testified that Benton was traveling in the truck at an excessive rate of speed. The fact is, that the truck came to a stop at a distance exceeding 100 yards from the point of collision.

One of the eyewitnesses, C. W. Brown, in testifying about the speed Benton was driving, said that, even if plaintiff had stopped his auto, there would, however, have been an accident, because the truck “couldn’t have stopped.”

Plaintiff, as we have before stated, was edging along the highway in making the intersection, and was following the course directed by .the section of the statute, above cited, providing for the regulation of the movement of autos or vehicles in such instances. Plaintiff is not therefore chargeable with negligence in the management of his auto at that time.

Not so with Benton, employee of defendant company, who was clearly at fault in blocking the passage of plaintiff’s auto, as above explained.

It is true that plaintiff, when he found his way blocked, swerved his auto to his left, and in attempting to come oack to his right the collision occurred. His swerving to his left was, however, brought about by the negligence of defendant’s employee. Being thus confronted suddenly with the presence of the truck in his path, plaintiff was placed in a dangerous position, and in attempting .to extricate himself from such a perilous situation, even if he failed to exercise the best judgment, he is not chargeable with contributory negligence. Pope v. Locascio, 13 La. App. 304, 126 So. 727, 729; Smith v. Interurban Trausp. Co., 5 La. App. 704; Kennedy v. Opdenweyer, 11 La. App. 532, 121 So. 636, 123 So. 906.

Defendant was at fault, and was properly held liable in damages.

AMOUNT

Immediately after the accident plaintiff, unassisted, walked to the truck, and was engaged for a while in a conversation about the accident with the occupants of the truck.

His face was bleeding from cuts . on his head, on one ear, and back of it. A piece of his ear was cut off, but, from his answers to .the quescions put to him on that subject, it seems that the cut resulted in a notch, dint, or dent. The disfigurement of the ear must have been rather slight. He say his friends some time “kid me about this cut on my ear,” and that even his wife indulges at times in these allusions. All of that, he says, causes him some embarrassment. He suffered injury to his legs, causing pain, he says, when the cold weather sets in, and he also limps in his left leg. He was in the hospital' one month as a result of the accident, and no doubt suffered some mental anguish and physical pains. '

He testified that for the repairs .to his damaged auto he paid $234.75, and that he paid $25 to have his car taken from the scene of the wreck to Baton Rouge; that his bill at the hospital was $20, which he had also to pay, making a total for these items of $279.75. There is no proof to the contrary.

The court allowed him judgment for $2,500. The allowance to plaintiff for personal injury should not be over $1,500, to which must be added $279.75 for the amounts above mentioned.

It is therefore ordered, adjudged, and decreed that the judgment below granting damages to plaintiff be amended, and that the amount allowed be, and is hereby, reduced to a total of $1,779.75; and, as thus amended, the judgment be affirmed.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4071
    Second Circuit
    WATERS ET AL. v. MERIWETHER TRANSFER CO., INC.
    (November 18, 1931. Opinion and Decree.)
    Robert J. O’Neal, of Shreveport, Walter L. Brown, of El Dorado, Ark., and Harvey G. Fields,. of Farmerville, attorneys for plaintiffs, appellees.
    Dickson & Denny and Ben E. Coleman, of Shreveport, attorneys for defendant, appellant.
   McGREGOR, J.

The plaintiff, a resident of the state of Arkansas, brings this suit against the defendant, a corporation domiciled in the city of Shreveport, for the sum of $15,000 for herself individually, and for $15,000 as guardian for her minor daughter, for the death of Ollie Waters, her husband and the father of her daughter, caused by a collision between a seven-passenger Cadillac automobile, in which he was riding as a passenger alone on the back seat, and a truck owned and operated by the defendant company. The collision occurred on the paved highway between Smackover and El Dorado, Ark., about five miles north of El Dorado, on June 30, 1929, at eleven o’clock at night. The automobile was being driven by its owner, Clarence Edwards, traveling south, going toward El Dorado from Smackover. On the front seat with the owner there was a woman passenger named Mildred Studerick. The truck had attached to it a trailer and was loaded with oil field pipe, which extended over the end of the trailer more than four feet. It was also headed toward El Dorado, but parked on the same side of the pavement as the automobile was traveling. On the same day, T. E. McGraw, an employee of the defendant, was driving this loaded truck and trailer toward El Dorado and at about one o’clock p. m., when he was five miles north of El Dorado, one of the axles of the truck broke, and it became necessary for him to leave his load and go to El Dorado for the necessary parts to repair it. He left a negro boy with the truck, with instructions to guard it by day, and to warn traffic at night. There was no red flag on the rear of the load, nor was there any kind of rear light on the trailer. At the time of the accident, there was no light of any kind displayed on any portion of the truck, trailer, or load. There is a difference of opinion among the witnesses as to whether the truck and trailer with the load of pipe were parallel with the pavement and close to or off the edge, over on the shoulder. When McGraw reached El Dorado, he was unable to find the necessary parts, so he telephoned to the office of the defendant, his employer, in the city of Shreveport for instructions. He was told that the parts could not be obtained and sent until the next day, Monday, and was instructed to take another of defendant’s trucks, which was in El Dorado, and to come home in it. He obeyed these instructions, and consequently the broken truck with the trailer and load of pipe were left on the roadside in the exact position in which they were when the axle broke. The boy in whose charge it was left had no means with which to equip the rear of the trailer or the pipe with a warning light or other device. For some unknown reason, he did not utilize the lights that were said to have been on the truck proper. He built a temporary fire in front of the truck, . but this soon went out for want of fuel to keep it going. It is more than likely that he soon became weary and went to sleep on the job. The place where the broken truck was left parked was about one hundred yards or less south of a cross-road which intersects the main highway at or near what is known as Goodwin’s Service Station. After Clarence Edwards, the owner and driver of the car in which the deceased Ollie Waters was riding, had crossed this intersecting road, he, Edwards, suddenly discovered the parked truck and trailer in his pathway, and immediately swerved to the left in an effort to pass on the left of the truck. In this he was unsuccessful. Instead of passing the truck as he tried to do, the right rear end of the automobile collided with the protruding ends of the loaded pipe. Ollie Waters was hurled clear of the car several feet -off the road on the right side, going in the same direction in which they were traveling, and died in about twenty or thirty minutes. The car proceeded on a few feet and turned oyer on its left side without leaving the road, and stopped near the cabin of the truck, broadside with its front towards the truck.

The demand of the plaintiff is based on the alleged carelessness and negligence of the defendant’s employee:

“(a) In leaving the automobile truck loaded with pipe standing on the public highway .without lights or other warning signals, showing the presence of said automobile truck on said highway at said time.
“(b) In permitting said truck to be left on the highway at night with the pipe loaded thereon, extending more than four feet from the rear of the bed of said truck, and extending over the center of the highway without a light or other warning signal thereon, in violation of the Statutes of Arkansas, to warn persons using said highway that said pipe obstructed passage on said highway.
“(c) In leaving said truck on said highway in the night time without lights or other signals, or some person in attendance thereon, to warn persona of the presence of said truck, and obstructions.”

The answer of the defendant denies all negligence on the part of its employee, and alleges that the accident was the result of the negligence of the driver of the automobile and its occupants, in that they were traveling at a careless and reckless rate of speed, and were under the influence of whisky at the time of the accident. It is specially pleaded by the defendant that the deceased Ollie Waters and Clarence Edwards with Mildred Studerick were on a mutual and joint mission, adventure, and riding party at the time of the accident, and that the deceased Ollie Waters thus assumed the risk and was chargeable with the negligence o'f the said Clarence Edwards. It is pleaded further that, in the alternative, if it should be found that the defendant was. guilty of negligence, then the negligence of the said joint adventurers contributed to the accident, and that, on account of this alleged contributory negligence, the plaintiff’s demands should be rejected.

On trial in the lower court, judgment was rendered against the defendant in favor of the plaintiff individually for the sum of $3,500, with interest, and, as guardian for her minor daughter, for an additional sum of $4,000, with interest. Prom this judgment, the defendant alone has appealed.

In the consideration of this case, there are four questions to be determined, namely: (1) Was the defendant, through its agent and. employee, T. E. McGraw, guilty of negligence? (2) Was Clarence Edwards, owner and driver of the Cadillac automobile, guilty of negligence? (3) Were Clarence Edwards and Ollie Waters, the deceased, and Mildred Studerick engaged in a joint adventure, and is the negligence of Edwards, if any, imputable to Ollie Waters, the deceased? (4) Can .the plea of contributory negligence be sustained?

The plaintiff filed in evidence three extracts from the laws of the state of Arkansas regulating vehicular traffic (Crawford & Moses’ Dig. Ark. Supp. 1927, secs. 5506k1, 5506v1, 5506b2) which provides:

“(1) Whenever the load on any vehicle shall extend more than four feet beyond the rear of the bqd or body thereof, there shall be displayed at the end of such load in such position as to be clearly visible at all times from the rear of such load a red flag not less, than twelve inches both in length and width, except that between one-half hour' after sunset and one-half hour before sunrise there shall' be displayed at the end of any such load a yellow or red light plainly visible under normal atmospheric conditions at least two hundred . feet from the rear of such vehicle. Ib. sec. 37.
“(2) That every trailer which is drawn at the end of a truck shall carry a rear light which shall be visible a distance of five hundred feet.
“(3) Whenever a vehicle is parked or-stopped upon a highway whether attended or unattended during the times mentioned in Sec. 5506vl there shall be displayed upon such vehicle one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five-hundred feet to the front of such vehicle and projecting a yellow or red light visible under like conditions from a distance of five hundred feet to the rear, except that local authorities, may provide by ordinance that no lights need be displayed upon any such vehicle when parked in accordance with local ordinances upon a highway where there is sufficient light to reveal- any person within a distance of two hundred feet upon such highway. Ib. sec. 54.”

It is conclusively proved that the load of pipe on the defendant’s truck and trailer extended more than four feet beyond the rear end of the trailer, and that there was no red flag of any kind or description displayed at -the end of the load by day, nor was. there any light of any kind displayed at night. This plain violation of section 5506kl of the Arkansas law constitutes carelessness and negligence.

It is admitted by defendant’s driver, T. E. McGraw, that the trailer itself was not equipped with any kind of light. This is another violation of the law; and to leave a trailer loaded or unloaded on the side of a highway thus at night, without any kind of rear light, is the grossest kind of negligence.

It is testified by practically every witness on both sides that not only was there no light on the rear of the load or of the trailer, but there was no light anywhere about the truck, either in front or in the rear at the time of the accident. Such a violation, not only of the express law of the state, but of all rules of care and caution established by jurisprudence everywhere, is such gross negligence as would be absolutely inexcusable for any cause, if it is persisted in for any considerable length of time. In this case, the truck was left by the driver at one o’clock in the afternoon, and the accident occurred at eleven o’clock that night. The condition had therefore existed for ten hours. Defendant’s driver had ample opportunity to do so, and should have procured the necessary lights and displayed them on the truck, trailer, and load, as is provided by law. The defendant company knew of the situation, and, instead of instructing Mc-Graw to go out to the truck and place the proper lights on it, he was ordered to take another truck and come into Shreveport, which he did. It is true that.McGraw left a negro boy, Alf Clark, in charge of the truck, but he did nothing to prevent any accident from happening. McGraw testified that he instructed Clark about turning the truck lights on, but he either did not do it or else the lights would not burn or went out. Clark was not sworn as a witness on this point.

Another act of negligence of McGraw was the position in which the truck and trailer with the load of pipe were parked. The witnesses differ on this matter, but the* preponderance of the testimony is that the rear end of the load of pipe was a few feet on the left side of the middle of the eighteen-foot pavement, so that traffic in passing the truck had to leave the pavement and travel on the dirt shoulder. Leaving it parked in this position increased the hazard very much, and made the necessity for proper lighting much greater. We are bound to conclude from the evidence that the defendant was guilty of, and chargeable with, the grossest kind of negligence.

We come now to the question of the alleged negligence of Clarence Edwards, the owner and' driver of .the Cadillac automobile. The courts almost uniformly hold the driver of an automobile negligent when he collides with any kind of vehicle parked, on the right side of a road at night, whether the parked vehicle was properly lighted or not. There are some exceptions to • the rule, and plaintiff contends that there were circumstances connected! with this collision which exculpate Edwards from the charge of negligence in the accident. Defendant’s loaded truck and trailer were parked on the right or west side of the highway not a great distance south of a crossroad that intersects the highway, and about the same distance from the crest of a hill between it and the town of El Dorado. Clarence Edwards, the owner and driver of the Cadillac automobile, slowed down, souuded his horn, and proceeded with care and caution as he approached and crossed the said intersecting road. As he was crossing this road, another car with headlights burning, approached from the right or west and turned into the highway towards. El Dorado. This threw this other car immediately behind tbe Cadillac, and the headlights from that car immediately cast a reflection in the windshield, as well as the rear view mirror of the Cadillac car. Simultaneously with this incident, another car came over the crest of the hill toward the Cadillac. Just when the lights of the car from the rear -and the one coming toward him attracted his attention at the same time, Edwards was close to, and suddenly became aware of the presence of, the parked truck and trailer. The driver of the • car that was meeting the Cadillac was of the opinion that Edwards was traveling at an excessive rate of speed, but the courts have uniformly held that it is impossible to judge the speed of an oncoming car with any degree of accuracy at night. Clarence Edwards and Mildred Studerick, the two surviving occupants, deny that the Cadillac was. being driven at a reckless rate of speed. Edwards very properly approached the crossroad with care and caution, and devoted his attention to the automobile that was approaching the intersection at the same time, and which immediately followed behind him in the highway, going toward El Dorado. As the lights from the rear automobile cast their reflection on his windshield and rear view mirror at the same time as those from the on-coming car from the crest of the hill, he was prevented from seeing the parked truck and trailer in time to stop before reaching it. A sudden emergency was thus created, and .he acted with the best judgment possible. .Ordinarily, it is always held that a driver of an automobile must see every parked car or object on the right side of the road at night in time to stop his car before colliding with it, nor is he excused because of on-coming bright lights. If bright lights blind him, he must pull to the right and slow down or stop until the confusion is over. But if the sudden appearance of bright lights prevents him from seeing the parked vehicle and creates an emergency, he is not guilty of negligence, and is excusable, if he meets this, emergency with the best possible judgment. In all the cases, in which it is held that the driver of an automobile cannot be excused because of being blinded by approaching bright lights, the evidence shows that the driver of the automobile sees the bright lights for a considerable distance in front of him, and proceeds in spite of being blinded. But if the bright lights are brought suddenly into view, and there is no time between the first appearance of the bright lights and the happening of the accident to observe the necessary rules of caution with reference to stopping and pulling to one side, the driver of the automobile cannot be charged with negligence for not stopping.

Another charge of negligence is that Clarence Edwards and Ollie Waters were drinking and in a state of intoxication at and before the accident, and that that fact contributed to the accident. A pint bottle of whisky was found on the ground close to the lifeless body of Ollie Waters. About one-fourth of the contents had been drunk. Just who drank it we do not know. One or two witnesses testified that they smelled- whisky on or near Clarence Edwards and Mildred Studerick, and others testified that they did not. But the fact of the presence of a bottle of whisky and the fact -that some witnesses did smell it .is sufficient to show that the occupants of the car were drinking some. But not a single witness was able or willing to say that either Edwards or any one of them was intoxicated or under the influence of whisky. The small amount absent from the bottle, from which all three must have drunk, negatives the idea that any one of them was intoxicated. Counsel for the defendant cite a long list of authorities on the question of -the assumption of risk by a passenger or guest who rides in an automobile driven by an intoxicated or drunken driver; but since we hold that Edwards, the driver of the automobile, was not intoxicated or even under the influence of whisky to any degree, it is useless to refer to or discuss these cases.

Counsel for defendant lay great stress up- • on the fact that Ollie Waters did not protest against the alleged reckless driving of Clarence Edwards. We hold that there was no reckless driving on the part of Edwards. He had slowed down and sounded his horn at the crossing, and did not have time to acquire any great excess of speed before -the accident. If he had been going at a greatly excessive rate of speed, he would not have been as nearly successful as he was in clearing the truck. The collision would have been headon, and the disaster would have been greater than it was. But be that as it may, even if Edwards had been going at an excessive rate of speed at the1 moment of and just before the accident, Waters would not have had time to become aware of and realize the danger or the necessity of protest. Before the obligation to' protest, to the driver of an automobile against excessive speed can rest upon a passenger or guest riding with him, the passenger or guest must have sufficient time in which to realize the danger of the speed. It is not required of a passenger or guest on a back seat to be so alert as to see and realize danger as quickly as the driver should. So that, even if we should hold that Edwards was negligent because of excessive speed, this negligence could- not have been imputed to Waters, the deceased, because of his failure to protest against it.

Counsel for defendant urge upon us the consideration of the question as to whether the three occupants of the Cadillac automobile were engaged upon a joint adventure at the time o.f the accident. I-t is contended that they were, and that if the driver were guilty of negligence that contributed to the accident, this would be imputed to the deceased Ollie Waters, and would preclude the plaintiff from recovering anything on account of his death. We hold that Clarence Edwards, the owner and driver of the Cadillac automobile, was not guilty of negligence, and -that therefore ’ there is no negligence to be imputed to the deceased. But because of the earnestness of counsel and the importance of the question raised, .we will concede for the sake of argument that Edwards may have been guilty of negligence, and will discuss the question as to whether the three occupants of the car were engaged in a joint adventure or whether, in that case, the negligence of Edwards, should be imputed to Waters, the deceased. The only proved object of the trip in the automobile was the desire and purpose of Clarence Edwards, the owner of the car, to go to Smackover to get two extra tires for his car, preparatory to going to Hot Springs, Ark., the next day. He did not care to go to Smackover alone. The deceased was a friend of his, and. he invited him to go along just for the ride. It is as clear a case of invited guest as opposed to a joint adventure as could be found. In the case of Franklin et al. v. L. & A. Ry. Co., 10 La. App. 526, 120 So. 679, 680, inj passing on the question as to whether the negligence of the driver of an automobile is imputable to a passenger or guest on the back seat, this court said:

“But his negligence cannot be imputed to plaintiff’s husband, who was on the back seat and was not responsible for the operation of the car.”

In the case of Lawrason v. Richard, 16 La. App. 434, 129 So. 250, 253, the plaintiff, an invited guest in the rumble seat, brought suit against the driver of the car for damages on account of injuries received as the result of an automobile accident. On the necessity of protest from the guest, the Court of Appeal said:

“His seat in .the rumble, with the curtain which separated his seat from that which was occupied by the defendant, buttoned down, made any communication between him and the defendant very difficult. In order for the' plaintiff to have made himself heard by defendant while the car was going, it would have been' necessary for him to speak loudly and raise his .voice above the ordinary tone. The plaintiff could not see ahead through the curtain and darkness in the direction the car was going, so remained in his, seat and said nothing to anybody in the front part of the car.
“The evidence shows that plaintiff was not consulted about the driving, the speed, nor anything that the defendant was doing in so far as concerned the driving of the car.
“That plaintiff had no control or authorityii over the car, nor over the defendant, nor as to defendant’s manner and method of driving. The defendant, Richard, drove as he willed and saw proper. The fact that plaintiff made no- request nor protest in such a situation cannot exonerate the defendant from responsibility because of his reckless disregard for prudence and care.”

In the case at bar, the suit is not against the driver of the car, but the principle of the imputation of negligence is the same. In the case cited above, a writ of certiorari was granted by the Supreme Court “on the hypothesis that plaintiff and defendant were engaged in a joint enterprise, and that the acts of the one party were the acts-of all, of which none could complain.” In recalling the writ and affirming the judgment of the Court of Appeal, the Supreme Court said in 172 La. 696, 135 So. 29, 31:

“* * * There is no joint adventure, in the sense that the occupant of an automobile is equally liable with the driver unless there be also equal right to control the operation of the automobile. 42 C. J. 1179, sec. 957; Berry on Automobiles (6th Ed.) sec. 644.”

In the case at bar, the deceased was not in the rumble seat, but the obligation of protest could not be as strictly enforced against him as against one on the front seat by the side of the driver. The opportunity to see and realize danger is exceedingly limited in the case of a passenger or guest od the back seat, and furthermore, the interference of a “back seat driver” is often more harmful than it is beneficial, and for that reason it is. not encouraged by the courts. It is only in cases of apparent danger, and where there is time to realize the same, that an invited guest may seek to obtain judgment for damages on account of failure to protest to or warn the driver of the impending danger.

Also, in the case at bar, there is not a syllable of testimony to the effect that the deceased had any right to control the operation of the automobile. There is no testimony to the effect that the deceased was interested in the object of the trip to Smackover other than as a guest. In order to hold that the deceased was engaged in a joint adventure with Clarence Edwards, we must find a mutual interest in the object and purpose of the trip to Smackover, and, in addition thereto, we must find that the deceased had an equal right with the owner and driver of the car in respect of its control. Neither of these conditions existed in this case. The authorities are so numerous and conclusive on this subject it would serve no useful purpose to multiply citations. In the case of Withey v. Fowler Co., 164 Iowa, 377, 145 N. W. 923, 929, the court said:

“We can readily conceive that plaintiff and Loomer (the driver) might have been driving together under circumstances which would justify the conclusion that they were engaged in a common enterprise, but certainly such common purpose or interest is not to be inferred from the fact that they were riding in the same vehicle, one of them driving and managing the same, while the other occupied another seat, passively going wherever the driver saw fit to direct their course. Nor can it be inferred from the fact that the latter accepted the invitation of the former to ride as a matter of simple pleasure or outing. Indeed the fact that one invites and the other accepts a simple invitation of this kind, without suggestion of some common end to be accomplished by their united effort or agency, tends to negative any such relation.”

The testimony in the case at bar shows that the deceased accepted the invitation of Clarence Edwards to ride to Smackover as a matter of simple pleasure or outing. He had no interest in securing the two extra tires in Smackover, and had no interest in the proposed trip on the following day to Hot Springs. The trip cannot, therefore, be held to have been a joint adventure in accordance with any definition of that term or of any authority that we have been able to find.

Holding that the deceased was not guilty of negligence for failing to protest to the driver, and that he was not engaged in a joint adventure, and that, therefore,' no negligence of Clarence Edwards could be imputed to him, the question of contributory negligence passes out of the case, and it is useless to discuss it.

Counsel for defendant urge upon us that, even though we should not reverse the judgment of the-lower court, the amount of damages awarded should be reduced. The lower court weighed the evidence very carefully and gave much time to the consideration of the case. We find no mitigating circumstances whatever. The leaving of the truck and trailer for ten hours where, and as it' was,, was absolutely inexcusable. It was carelessness, and negligence of the grossest type. We do not find that the amount of damages awarded is excessive, and will not disturb it.

For the reasons assigned, the judgment appealed from is affirmed, with all costs of both courts.

DREW, X, concurs.


text:
    No. 3852
    Second Circuit
    AUTO FINANCE CO. v. TALLEY ET AL.
    (November 18, 1931. Opinion and Decree.)
    Argued before DREW, McGREGOR and TALIAFERRO, JJ.
    W. Peyton Cunningham, of Natchitoches, attorney for plaintiff, appellee.
    Jos. W. Jones, Jr., of Natchitoches, attorney for defendants, appellants.
   McGREGOR, J.

This is a suit for $593.85 for the balance due on the purchase price of an automobile and certain necessary' repairs. There was judgment in the lower court in favor of the plaintiff as prayed for and the defendants have perfected a devolutive appeal.

Neither side has made any appearance in this court. A careful examination of the record discloses no error in the judgment appealed from, and, in accordance with the custom of the court, it is hereby affirmed; defendants to pay all costs of both courts.


text:
    No. 3919
    Second Circuit
    SCOTT v. RAYSON
    (November 18, 1931. Opinion and Decree.)
    Lyons & Prentiss, of Shreveport) attorneys for plaintiff,' appellee.
    R. D. Fuller, of Shreveport, attorney for defendant, appellant.
   McGREGOR, J.

In this case the plaintiff sues the defendant for $900 damages growing out of an automobile collision on the Greenwood Road in Caddo parish. The lower court rendered judgment in favor of the plaintiff for $100, and the defendant has appealed. The defendant has. made no appearance in this court to prosecute his appeal, while the plaintiff has appeared, asking that the judgment be sustained. Under these circumstances and in view of the fact that a careful review of the evidence discloses no error on the part of the trial judge, the judgment must be affirmed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and the same is hereby affirmed; the defendant and appellant to pay all costs of both courts.


author: CULPEPPER, J.

text:
    No. 3601
    Second Circuit (Second Division)
    ENGLISH v. BARBEE
    (June 11, 1931. Opinion and Decree.)
    (July 16, 1931. Rehearing Refused.)
    Seals & Atkins and William P. M. Meadow, of Homer, attorneys for plaintiff, appellee.
    T. T. Land, of Homer, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff sues to recover damages for the loss of a mule, alleged to have been caused by the negligence of defendant’s employee in the operation of a motor vehicle belonging to defendant, upon a public highway near Homer in Claiborne parish. Prom a judgment in favor of plaintiff in the sum of $150, with legal interest from November 15, 1927, defendant prosecutes this appeal.

Plaintiff alleges that on November 15, 1927, while driving in a careful manner, his pair of mules hitched to his wagon, and keeping to the right-hand side of the road, on the public highway between Homer and Lisbon in Claiborne parish, one James Kimbell, an employee of defendant, driving defendant’s truck with attached trailer loaded with lumber, approached plaintiff from the rear, and without any warning signal attempted to and did pass petitioner; that said Kimbell was driving said truck in a careless manner, without brakes or any horn or signaling device thereon; that petitioner was not aware of the approaching truck or that it was going to pass him until the front part of the truck suddenly appeared along to his left side in such close proximity to his wagon and mules that his mules became frightened, causing them to shy; that petitioner endeavored to get his mules under control and would have done so had the driver stopped the truck; that the driver, instead of stopping the truck, continued on past petitioner and as he did so the lumber on the truck struck petitioner’s left mule about its head, causing it to rear to the side, swinging its hind legs toward the left, and the rear wheels of the trailer ran over and broke the mule’s left hind leg; that the mule was thereby rendered worthless and had to be killed. Petitioner alleges his mule was worth $150. He alleges the injury and loss of the mule was due to the gross negligence on the part of the driver of the truck, for which the defendant,' as employer of the driver and owner of the truck and trailer, is .liable in damages. Plaintiff also prayed for $50 attorney’s fees. Defendant being a non-resident, an attachment was prayed for and granted, attaching certain of his property within the jurisdiction of the court.

Defendant through his curator appointed by the court, filed an answer of general denial, and alleged that the accident and resultant injury was due solely to the negligence of plaintiff in not having his mules under control at the time of the accident. He admitted that, the truck had no horn or signaling device attached at the time.

Upon these issues the case went to trial, resulting in judgment for plaintiff as hereinabove stated. The attachment, however, was dissolved. The judgment is silent as to the claim for attorney’s fees.. We pre-' sume the claim was abandoned, as no testimony was adduced in support of same. There is no • testimony in the record in support of grounds for the attachment, and it will he presumed same was dissolved for that reason.

MERITS

Plaintiff’s testimony upon the trial of the case was at variance in some particulars with the allegations in his petition. However, no objections were urged to the testimony.

The testimony discloses substantially the facts to be as follows:

Plaintiff, on the occasion of the accident, was driving his wagon and pair of mules along the public highway in a prudent manner, keeping well to his right. The wagon was covered with a sheet supported by bows to which the sheet was fastened down by cords — simply what is commonly known as a “covered wagon.” He was seated on his spring seat in front, and had a hale of lint cotton loaded on the wagon. His rear view was therefore obstructed. He had reached a point at or about the foot of one hill and apparently approaching the ascent of another, when suddenly and unexpectedly to him, as well as to the mules he was driving, defendant’s truck with a trailer loaded with lumber and driven by his truck driver, James Kimbell, approached plaintiff from the rear. The truck had descended the hill from behind with its gears in neutral, or as we call it, “coasting” down the hill. It was making little if any noise, especially an unusually small amount of noise. As it reached the bottom of the hill and when within a few feet of the wagon; the driver threw his truck into gear, which caused a sudden and unusual noise which frightened the mules. The truck driver in the meantime had given no warning nor signal of any kind to plaintiff of his approach. In fact, he had no horn nor signaling device on the truck. Notwithstanding the frightened condition of the mules thus brought about by the noiseless approach and sudden and unusually loud noise resulting from shifting the gears of the truck, and lack of warning to plaintiff, all of which constituted gross negligence on the part of the truck driver, the latter, according to his own testimony, made no effort to slow down or stop the truck, but continued driving, swerved to the left and came along by the side of the wagon, at about which time plaintiff discovered what it was, but before he had time to rein up his, mules and bring them under control, the truck had advanced to a point that the lumber struck the mule nearest tq it somewhere about the head, at about which time plaintiff, evidently in an effort to bring his mules to a stop, and not having had time to bring them under control with his reins, hollered “whoa” to them. The .inside mule apparently obeyed and stopped, but the off or outside 'mule did not. The continued forward movement of the outside mule and the effort being made by the inside mule to stop, swerved the mules and wagon to the left or toward the center of • the road and into the path of the oncoming trailer; and, as a result of which, the trailer’s wheels struck the left hind leg of the inside mule and broke it. The truck driver testified he saw the outside mule rear and lunge just as he was approaching even with the mules but saw nothing more of their movements after that qn account of the lumber obstructing his view. He therefore concluded that it was in the fault of that mule, also that plaintiff should have been able to control the mules, and thus avoid the accident. He certainly could not have expected plaintiff to do an impossible thing in an impossible length of time. He had, through his own negligence precipitated the mules into a panic without the slightest forewarning to plaintiff or his mules, so as to give plaintiff time and afford him an opportunity to keep his mules under control, or to bring them under control after they had become frightened. It was negligent in the driver of the truck to pass on by the mules when he knew, or should have known, their frightened condition. He says he could have stopped but did not think it necessary. He did not use prudence in not stopping under the circumstances. The law requires a person operating a motor vehicle to bring it to a stop when approaching a horse being driven if such animal appears to be frightened, and if traveling in the same direction as that of the animal, the operator shall use all reasonable precautio.n in passing. (Act No. 232 of 192'6, sec. 15.) The truck driver in this instance admits on the witness stand that he saw this outside mule just as he came up to the wagon and saw that the mule was frightened, and that it was frightened just as he started to (pass around the wagon. He also admits that he placed the truck in gear when he was “a little behind him” (the wagon).

He was asked:

“Q. Yod put your car in gear a little behind him?
“A. Yes, sir.
“Q. I’ll ask you in doing this, if that does not create an extraordinary noise in the motor?
“A. Yes, sir, a little unusual.
"Q. And you did that just a little to the back of the wagon?
“A. Yes, sir, just behind the wagon.
“Q. Do you think this was enough to frighten them?
“A. Well, yes, sir.”

It is evident that the driver was negligent in not stopping the truck under such circumstances as disclosed here. His continued negligence in proceeding to pass the wagon and mules finally resulted in the accident and injury. We cannot see, under the circumstances, how plaintiff could have avoided the accident. He apparently did what he could to extricate his team of mules from the peril they had been placed in by the negligent acts of defendant’s truck driver. No negligence can be chargeable to plaintiff under the circumstances. Defendant is liable for the faults of his servant. The value of the mule was fully proven to amount to the • sum claimed. The lower court gave judgment for that amount. We think the judgment correct and it is therefore affirmed.


text:
    No. 3741
    Second Circuit
    SIMMONS ET AL. v. GALLASPY ET AL.
    (November 18, 1931. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiffs, appellants.
    Breazeale & Hughes, of Natchitoches, attorneys for defendants, appellees.
   McGREGOR, J.

On July 9, 1929, Mrs. Ethel Gallaspy, defendant in this case, alleging herself to be the owner of a special mortgage note dated at Natchitoches, Louisiana, April 28, 1924, for $300, signed and executed by R. H. Simmons and his wife, Lucy Simmons, sought and obtained an order for executory process for the sale of the property covered by the said special mortgage. It is specially alleged, and the act of mortgage so shows, that the wife joined her husband in the act and that they waived all homestead rights in the land described therein. Since the execution of the mortgage and note and before the order for executory process was issued, R. H. Simmons died, and the customary notice to pay was served on Mrs. Lucy Simmons as his surviving spouse according to law.

On August 23, 1929, while the sheriff was proceeding to advertise the property for sale, Mrs. Lucy Simmons and all her children, issue of her marriage with her deceased husband, filed suit for an injunction against Mrs. Gallaspy, and the sheriff of Natchitoches parish, to restrain them from selling the property described in the mortgage, and because of the shortness of time before the day of sale, a temporary restraining order was prayed for and granted.

In their petition for the injunction the plaintiffs alleged:

(1) That the note and mortgage were given without consideration as an accommodation to F. G. Galaspy, a merchant, the husband of defendant.

(2) That the wife, Mrs. Lucy Simmons, never signed the note and mortgage and that her signatures to the note and mortgage are forgeries, and that they, therefore, interpose their homestead rights on the ground that the wife never joined in the homestead waiver.

(3) That if there was any consideration for the said note it had long since been paid.

(4) That, even if there were a valid consideration given for the note and mortgage, they were the property of F. G. Gallaspy, the husband, and that the said Mrs. Ethel Gallaspy, the wife, could not be the owner of them under the law.

On trial of the rule to show cause why •preliminary injunction should not issue, there was judgment in favor of the plaintiffs and the preliminary injunction was accordingly issued. Later, on the trial of the merits of the case, there was judgment in favor of the defendants dissolving the preliminary injunction and for $30 attorney’s fee. From this judgment the plaintiffs appealed.

None of the plaintiffs testified at the trial, though it is said that they were-presr' ent in court. The only effort made by them was tq secure the original ledger sheets showing the account of R. H. Simmons with F. G. Gallaspy over a period of several years, and to cross-examine the said Gallaspy thereon.

No appearance has been made in this court by the appellants, but in spite of that fact we have carefully examined the record but find no error therein.

We therefore order, adjudge and decree that the judgment appealed from be, and the same is hereby affirmed, the plaintiffs to pay all costs in both courts.


author: HIGGINS, J.

text:
    No. 13,452
    Orleans
    REED v. WARREN
    (January 19, 1931. Opinion and Decree.)
    (February 16, 1931. Rehearing Refused.)
    (March 30, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (July 8, 1931. Opinion and Decree by Supreme Court.)

      Edward Rightor and Wm. H. Sellers, of New Orleans, attorneys for plaintiff, appellant. :
    J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

The plaintiff brings this suit for damages resulting from the death of his sister and mother, who died of injuries sustained by them when the defendant’s automobile ran over them on Prytania street in this city on December 24, 1928. It appears that the sister died shortly after the accident, and that -the mother succumbed several hours later. There are five surviving major children of the mother, and each has filed a separate’ suit for damages for the loss of companionship and affection of his sister and his mother, and also for pain and suffering of the mother, as well as necessary expenses incurred.

The defendant filed an exception of no cause of action as to the claim for damages for the death of the sister and ah exception of want of proper parties as to the claim for damages for the death of the mother.

* Thé judge of the trial court sustained the exception of no cause of action, and dismissed the plaintiff’s- suit as to the claim for damages for the death of the sister. He also sustained the exception of want of proper parties as to the claim for damages for the death of the mother, allowing the plain-tiff twenty days in which to amend and to make the proper parties, otherwise the suit to be dismissed. Plaintiff has appealed.

Since the sister died before the mother, it is conceded by the plaintiff that the right of action for the death of the sister, under article 2315 of the Revised Civil Code, as amended by Act No. 159 of 1918, expired upon the death of the mother, under the interpretation placed upon the provisions of that law by the Supreme Court in the case of Kerner v. Trans-Mississippi Terminal Co., 158 La. 853, 104 So. 740.

As to the exception of want of proper parties, the plaintiff contends that the language of article 2315 of the Revised Civil Code, as amended, giving a right of action for death to the surviving major children, should ( be construed so as to give each of them a right of action which each might separately assert.

Defendant contends the right of action is a joint one, and that all of the surviving children must be made parties to the same suit.

Article-2315, Rev. Civ. Code, as ameuded by Act No. 159 of WS, reads as follows:

“Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in cases where there is no surviving spouse or minor child or children.
“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the case may be.”

Paragraph 10 of the petition itemizes the damages for the death of the mother as follows:

“For the loss of companionship and deep affection, $5,000; for the pain and suffering of decedent, $5,000; for necessary expenses incurred, $100.45.”

It appears that each of the other children, in filing their separate suits, made the same allegation in their respective petitions.

We shall treat the right of action to recover each of these items of damages in the above order.

It has been decided many times that a statute such as article 2315, Rev. Civ. Code, as amended, should be strictly construed. Kerner v. Trans-Mississippi Terminal Co., 158 La. 853, 104 So. 740; Chivers v. Roger, 50 La. Ann. 57, 23 So. 100; Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926; Hubgh v. N. O. & Carrollton R. R. Co., 6 La. Ann. 498, 54 Am. Dec. 565. It will be observed that the statute does not expressly provide how the rights of action shall be asserted by the survivors or beneficiaries; i. e., in one suit or in separate suits.

It is to be noted that, under the very last paragraph of the statute in question, the beneficiaries or survivors named “may also recover the damages sustained by them by the death of the parent.” This language gives a right of action to the beneficiaries or survivors named in the statute to recover damages which they sustained, such as loss of companionship and affection on account of the death of their parent. It would also include a right of action for loss of. support where the beneficiary happened to be dependent upon the deceased, and this is particularly true in -.the case of minor children, or parents dependent upon a major child who might happen to suffer death. This right of action for damages, is separate and distinct from the right of action for damages which survives the deceased in favor of the designated beneficiaries under the provisions of the first part of the statute.

It is easy to see that the claims for damages of the survivors or beneficiaries named in the statute would vary according to their dependency upon, and companionship and affection for, the deceased. For instance, let us assume, in the instant case, that the mother had two single daughters living with her, who were dependent upon her for support and who were her constant companions, and that one of her married sons lived in the neighborhood and regularly visited the mother and enjoyed her companionship and affection; that another married son lived in Texas, and visited his mother only once a year and corresponded with her intermittently, and that another son was a bachelor, who had left his mother’s home years ago, sojourning in Paris, and that he had never visited his mother and had seldom written to her. It is clear that these respective persons would have varying claims for damages for loss of support and affection and companionship of the mother. The court would not give a joint judgment in favor of all of the children and let them equally divide it, because this would be manifestly inequitable. It certainly was contemplated by the statute that each child was to be given a judgment for their respective losses. The very fact that separate judgments would have to be rendered in favor of each of the children, according to the different circumstances, shows that each has a separate right of action for the loss Qf support, companionship, and affection of his deceased parent, and that this right of action can be asserted in separate suits.

The question of whether the right of action, which survives in favor of the children for the pain and suffering of their deceased mother, under the language of che first part of the statute, can be asserted by these beneficiaries in separate suits to recover such damage, is not so easy of solution. At the outset, it must be noted that the pain and suffering of the deceased gives rise to a claim for damages- which the deceased could have asserted had she lived, and which is only vested in the beneficiaries by virtue of the provisions of the statute. While it is true that it is a difficult matter to appraise in dollars and cents the pain and suffering of a person, and that the amounts awarded have not been entirely uniform, nevertheless such a claim is a definite one, in the sense that it is for a particular kind of loss. Furthermore, no matter what the relations of the children were to their deceased parent, so far as companionship, affection, dependency, etc., are concerned, the item of damage for pain and suffering of the deceased parent is uniform as far as all of them are concerned, one not being entitled, in this respect, to any more than the others.

If we were to adopt the contention of defendant that all of the children of the deceased had to join in the same suit to claim damages for this item of pain and suffering of the deceased, what would happen in the case where one or two children were absentees, or, if present, were unwilling to join the others in bringing the suit? In such a situation the other children would be practically deprived of their rights because of the absentees or the children who were unwilling to join them in bringing the suit. But counsel for the defendant says, and his argument was adopted by our learned brother, a quo, that ■the absentees and unwilling children should be made parties defendant and be called upon to either join the plaintiffs or abandon their rights. This procedure would appear to us to be impracticable because the rights and interests of the defendant arid the absentees, or children who are unwilling to file sui-t, are conflicting. It would be unusual to have coupled, as defendants in the case, parties who have the same rights as the plaintiffs. It would appear that it was not the intention of the Legislature that one of the beneficiaries could prevent the others, from asserting their rights by refusing to join in the suit. It seems equally illogical and impracticable to join parties as dfefendants who should be parties plaintiff in the matter.

In the case of Eichorn v. N. O. & C. R. Light & Power Co., 112 La. 236, 36 So. 335, 340, 104 Am. St. Rep. 437, the widow brought two separate suits, one in her own behalf and one in behalf of her minor children. No exception of misjoinder of the parties was filed. The court, on rehearing, said:

"As to damages caused by death, the widow and. the minors have separate causes of action, but have been permitted by our jurisprudence to cumulate their demands in the same suit, because their right to recover is dependent on the same state of facts, and they have a joint interest in the recovery of such damages as were recoverable prior to the act of 1884. Bus-well on Personal Injuries says: ‘And it is held, apparently with sound reason, that, when the death occurs, two causes of action may arise — one in favor of the decedent, under the statute providing for the survival of such actions; the other founded on his, death, under the statute providing for such actions, and being for. the benefit of the relations named in the statute.’ The damages are given for different purposes. Id. (2d Ed.) p. 25, sec. 21.
“Hence the judgment rendered in this case will leave to the minors no cause of action, except to recover the pecuniary loss sustained by them by reason of the death of the father.”

However, it must be noted tbat the right, of action under the statute was in favor of ‘‘the minor children or widow” instead of the minor children and widow. In short, the statute was written in the disjunctive and not in the conjunctive, as is the situation in the instant case.

In the case of Underwood v. Gulf Refining Co., 128 La. 968, on page 986, 55 So. 641, the Supreme Court gave an exhaustive history of article 2315, Rev. Civ. Code, and held that, where the plaintiffs sued in damages for the death of their brother, there were two causes of action in their favor under the statute. First, a right of action which their brother had for the injuries, pain, and suffering which he had sustained at the moment of his death, which survived in favor of his brothers and sisters; and, second, the right cf action on their own account to recover damages for the injury, moral or mental, as well as material, sustained by them by reason of such death. The court said (page 999 of 128 La., 55 So. 641, 652):

“* * * We find that, in July of the same year, the Governor approved the Act No. 120 of 1908, which places brothers and sisters in the category of those in whose favor the right of action of one who loses his life through the fault of another survives, and to whom, also, is given a separate .right of action for the injury resulting by reason of the same fault. Plaintiffs are therefore before the court by virtue of a special statute, authorizing them to recover the damages which their brother might have recovered at the moment of his death, as, also, the damages which they sustained by reason of his death, through the fault of the defendant, and, as we have seen, the damages recoverable in such cases include those resulting from moral as well as material injury, from injury to feelings as well as to purse.”

The court further said (page 1003 of 128 La., 55 So. 641, 653):

“* * * No one can recover to whom the statute has not given the right, limits the number of persons by whom such right may be exercised within reasonable bounds and makes it an easy matter to apportion the amounts to be awarded, if it can be said that there is an apportionment when each sufferer recovers upon the merits of his, or her, own claim. As to the assessment of the damages, we have already noted that, in cases of this kind, our law vests ‘much discretion’ in the judge or jury. Civ. Code, art. 1934, par. 3; Caspar v. Prosdame, 46 La. Ann. 40, 14 So. 317; Taylor v. Ellington, 46 La. Ann. 375, 15 So. 499. In the exercise of that discretion we fix the amount to which plaintiffs. are entitled, on the cause of action which survived the decedent, in their favor and by reason of his physical suffering at $1,000.
“As to the amount which should be allowed for the mental suffering inflicted on plaintiffs by reason of the untimely death of the brother, * * * we have concluded to fix the amount to be allowed on this count at $50, making a total of $1,050.”

The only argument advanced by the defendant that the right of action should be jointly asserted in one proceeding is one of convenience for the tort-feasor; i. e., that it is better that all parties, be brought in one case before the same court and the whole litigation ended at one time. Let us see what inconvenience would, result to the plaintiffs if they are required to all appear in the same court in one suit. Suppose a man living in New Orleans, while driving his automobile In Shreveport, ran over and killed the parents of six major children and that three of the children lived in Shreveport and three in New Orleans. Under the general law, the tortfeasor could be sued at his domicile, which we will say, is New Orleans, and he could likewise, under paragraph 9 of Act No. 130 of 1926, be sued at Shreveport, where the accident occurred. In such a case the parties plaintiff would be placed to the same inconvenience complained of by the defendant, if all of them were required to join in one suit.

In the case of Clairain v. Telegraph Co., 40 La. Ann. 178, 3 So. 625, the Supreme Court held that it was unobjectionable for all the beneficiaries under the statute to join in one suit as parties plaintiff against the tort-feasor.

It would also appear that such separate suits should be consolidated for the purpose of tiial wherever the rights of the parties would not be prejudiced thereby.

We have come to the conclusion that the only practicable and logical manner to give effect to the provisions, of the statute is to interpret them as giving the respective beneficiaries named therein separate rights of action to recover damages for injury, pain, and suffering of the deceased and for loss of support, companionship, and affection, for which they might bring separate suits against the tort-feasor; the amount due each for loss of support, companionship, and affection depending upon'' the facts and circumstances surrounding the relation of the beneficiary to the deceased, and the amount to be awarded for the pain and suffering of deceased to be uniformly and equally distributed among the different survivors or beneficiaries, and such fact to be taken into consideration in each case. In other words, assuming that the pain and suffering of the deceased would amount to, say, $5,000, and that there were five children, each child would be entitled to the sum of $1,000, and that amount fixed in each case.

No issue has been raised as to the third item of damages, i. e., necessary expenses.

For the reasons assigned, the judgment appealed from is. annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the exception of nonjoinder of parties filed by defendant be, and the same is, overruled, and the case remanded to the lower court for such proceedings not inconsistent with the views herein expressed and according to law.


author: WESTERFIELD, J.

text:
    No. 13,365
    Orleans
    SIEVERS v. SAMUEL
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (March 3, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (July 8, 1931. Opinion and Decree by Supreme Court.)
    F. G. Veith, of New Orleans, attorney for plaintiff, appellee.
    James G. Schillin, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

-The plaintiff, Robert Sievers, provisionally seized the effects qf his tenant, Wilfred Samuel, claiming that there was rent due him in the sum of $263. The seizure was released on a forthcoming bond, upon which James G. Schillin appeared as surety. The bond was given to the constable without an order of court and, by agreement between counsel. A number of partial payments were made qn account of the judgment, with the result that, after the addition of costs of suit, the landlord’s claim had been reduced to the suni of $192.90, for which sum Samuel and Schillin were condemned on the forthcoming bond, the property which it represented having, with trivial exceptions, disappeared.

Arnohg other defenses it is contended that the forthcoming bond is illegal and of no effect because issued without an order of court,' as required by article 287 of the Code of Practice. Appellee, referring to this point, argues that, since this case originated in the First City Court, the rules applicable to procedure before justices of the peace apply and that no order of court is necessary under the provisions of art. 1127, C. P., which, it is said governs here.

It will be noticed that the amount involved exceeds the sum of $100. Consequently the case is within the concurrent jurisdiction of the city courts with district courts and, under the authority of Act No. 128 of 1921 (Ex. Sess.), the manner and form of procedure is the same as that which obtains in the district court. The question, therefore, is whether, according to the procedure in the district courts of the state, an order of court is a prerequisite, essential to the validity of a forthcoming bond. The bond before us, which is on a printed form, purports to have been executed “by order of court,” which, since these words appear in the printed portion, would, at least, indicate that the practice was to obtain the order. There is certainly good reason to do so. A constable or sheriff should not be permitted to accept a forthcoming bond upon his own initiative and we understand the case of Honeycutt v. Whitten et al., 152 La. 1046, 95 So. 216, 218, to hold that, though other formalities required by art. 287, C. P., may be waived, because, in the interest and for the benefit of the parties (lessor and lessee), the order of court is essential and may not be dispensed with. In the words of the court “the permission to bond constituted the judicial sanction for the release of the seizure, it was jurisdictional, and was an essential ¡prerequisite to authorize the sheriff to substitute an obligation in lieu of the property which he held under seizure.”

We are qf opinion that the case is controlled by Honeycutt v. Whitten et al., supra.

For the reasons assigned the judgment appealed from is amended in so far as it runs in favor of the plaintiff, Robert E. Sievers, and against the defendant, James G. Schillin, and it is now ordered that plaintiff’s suit against James G. Schillin be dismissed at his cost.


author: JANVIER, J.

text:
    No. 13,877
    Orleans
    PAILET & JACOBS, INC., v. RHODES, JR.
    (November 30, 1931. Opinion and Decree.)

      William H. Talbot, of New Orleans, attorney for plaintiff, appellant.
    Louis R. Hoover, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiffs claim to. have leased to defendant, for one year, at $40 per month, thé premises numbered 1165-67 Eagle street, New Orleans, and, they allege, that said defendant has refused to take possession of the premises and has failed to .pay the rent due under the lease. They aver that they have been unable to secure another tenant and that defendant is indebted to them in the sum of $480.

• Defendant denies that, he leased the premises, though he admits that he signed and submitted to plaintiffs, through their agent, a written lease which, at that time, had not been signed nor accepted by plaintiffs and that it was his understanding with the said agent that the document which, at that time, amounted to no more than an offer to lease, would be submitted to plaintiffs, as owners, for acceptance or rejection by them and that the action of the said owners would be communicated to him.

He states, and it is conceded, that in the document which he signed it was stipulated that rent should be payable monthly in advance and that the lease was to begin on October 1, 1930. He further charges that he was at no time advised that the owners had accepted his offer; that no copy of the lease bearing the signatures of the owners was sent -to him but that, on the contrary, about one month, prior to October 1st, a representative of the agent of the owners called on him and advised him that the lease would not be executed unless he, the prospective tenant, would, at that time, pay the rent- for the first month. He states that he considered this a rejection of his. original offer, under the terms of which, rent for the first month was not due until October 1st, and that he, thereafter, secured a. lease on other property.

The representative of the agent admits that he called on defendant and attempted to secure one month’s rent about thirty days before it would have been due, under the lease, but he denies that he told defendant that' the lease would not be executed unless such payment should be made. He states that, on the contrary, the fully executed lease had been sent to defendant previously, and that the only purpose of his visit was to persuade defendant to comply with the alleged custom of paying rent for the first’ month immediately upon execution of the lease.

• The district judge came to the conclusion that defendant had not been advised of the acceptance of his offer and, that the demand by the • agent of the first month’s rent nearly thirty days prior to October 1st, constituted a rejection of defendant’s original offer and an effort to commence new negotiations. Judgment was rendered below dismissing plaintiffs’ suit.

Since it is admitted that under the terms of the lease, rent for the first month was not due until October 1st, it seems improbable that the real estate agent would have sent to defendant a copy of that lease more than one month prior to October 1st, and that,, immediately thereafter he would have demanded payment of rent which, under that very document, was nqt due for nearly thirty days. Then, too, if the lease had been sent to defendant by mail as plaintiffs contend, it is very probable that a letter would have accompanied it and no copy of such letter was produced by plaintiffs or their agent. The evidence fails to show to our satisfaction that there exists such a custom as is contended for by plaintiffs with reference to the payment, at the time of the signing of the lease, of one month’s rent where the lease, itself, does not stipulate for such payment.

Both defendant and his wife deny having received any copy qf the lease or having been advised of its acceptance prior to the time at which the agent’s representative called upon defendant and attempted to persuade him to pay rent prior to the time at which it would have been due under the lease.

The evidence fails to show that acceptance of defendant’s offer was communicated tq him and convinces us that the sfction of plaintiffs’ agent indicated that the offer, as originally made, had been rejected. Defendant was at liberty to recede.

“The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.”

Civil Code, art. 1805.

The judgment appealed from is affirmed.


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    No. 13,717
    Orleans
    COSTELLO v. MORRISON CAFETERIA CO. OF LA., INC., ET AL.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    (October 6, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Solomon S. Goldman, of New Orleans, attorney for plaintiff, appellant.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendants, appellees.
   HIGGINS, J.

This is a suit to recover damages for medical expenses and for pain and suffering said to have resulted from eating unwholesome and poisonous cream cheese and/or cream served by the defendant to plaintiff in its cafeteria or restaurant on August 21, 1929.

The petition alleges:

Paragraph 6. “That petitioner did not know the said cream cheese and/or cream was unfit to eat but that Morrison Cafeteria Co. of La., Inc., did or should have known that fact, and in serving same to petitioner warranted it to be wholesome to eat.’’

Paragraph 7. “That petitioner is informed and believes and therefore avers that the said cream cheese and cream was supplied to Morrison Cafeteria Co. of La., Inc., hy the Cloverland Dairy Products Co., Inc., a Louisiana Corporation, domiciled in this City, engaged in the business of selling dairy products and petitioner alleges that said cream cheese and/or cream was contaminated and unfit to eat before delivered to the former corporation; that the Cloverland Dairy Products Co., Inc., also knew or should have known that fact, and in that event is responsible to petitioner for»the damages caused thereby.”

The Cloverland Dairy Products Co., Inc., answered denying liability, and defendant Morrison Cafeteria Company, Inc., filed an exception of no right or cause of' action on the following grounds:

1st. “That the food was unfit when delivered to Morrison Co.”
2nd. “That there was nothing about the food to put Morrison Co. on notice that it was unfit.’’

The trial court sustained the exception and dismissed plaintiff’s suit as against Morrison Co. and plaintiff has appealed.

As we view the petition the pleader attempts to set up a cause of action as a result of a breach of implied warranty of the fitness of the food- served for human consumption and also because of the negligence of both defendants in offering for sale and selling such food when they knew or should have known that it was deleterious and poisonous and, hence, the defendants were guilty of negligence and carelessness which rendered them liable.

Taking up these points in the inverse order we first observe that this is a case which falls under the doctrine of “res ipsa loquitur.” Plaintiff could have little, if any, information regarding the condition of the food, whereof defendant should be informed. In such a case plaintiff need not allege or prove the precise cause of the accident or injury, being only required to make a general allegation of negligence. Motor Sales & Service, Inc., v. Grasselli Chemical Co. et al. 15 La. App. 353, 131 So. 623, 624; Horrel et al. v. Gulf & Valley Cotton Oil Company, Inc., 15 La. App. 603, 131 So. 709; Scott v. Checker Cab Co., Inc., 12 La. App. 598, 126 So. 241.

Paragraph 6 of the petition sets forth a general allegation of negligence against Morrison Company, in that it charges that that defendant knew, or should have known, that the cream cheese and/or cream was unfit to eat.

It was not necessary for the plaintiff to go further and set up specific acts of negligence, because this court has held that such allegations would merely be treated as surplusage. In instances where the plaintiff has, in addition to -the general allegation of negligence, alleged specific acts of negligence, defendants have uniformly contended before this court that the plaintiff has waived his rights under the doctrine of res ipsa loquitur, and is required to prove his case by a preponderance of the evidence and relieve the defendant of the duty of exculpating itself from fault. Horrel et al. v. Gulf & Valley Cotton Oil Company, supra.

Counsel for the exceptor has based his whole argument upon the allegation of paragraph 7 and completely ignores the allegations of paragraph 6. It is our opinion that these two paragraphs should be read together, and that the latter is not exclusive of the former, nor does it waive the rights of the plaintiff as set forth in the former paragraph. The question of. whether the exceptor had an opportunity to observe whether the food was unfit for consumption is one of defense which should be set up in an answer.

For' the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that this case be remanded to the Civil District Court for further proceedings according to law and not inconsistent with the views herein expressed.


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    No. 9830
    Orleans
    GOOD ET AL. v. PICONE
    (November 30, 1931. Opinion and Decree.)
    Gordon Boswell and Milo Williams, of New Orleans, attorneys for plaintiffs, appellants.
    St. Clair Adams, St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

JANVIER, J.

This matter comes before us on motion to dismiss the appeal for want of prosecution. Suit was filed in the district court on June 2, 1922. Judgment in favor of the defendant was signed on March 7, 1924, and plaintiff secured an order of appeal on August 13, 1924. When the matter appeared on the docket of this court, it was several times continued by preference, and, finally, on November 3, 1926, was continued indefinitely. On November 9, 1931, more than five years after the indefinite continuance referred to, no action having been taken to restore the case to the docket and no other proceeding having been filed in the matter, appellees filed this motion to dismiss.

Article 3519 of the Civil Code of Louisiana, as amended by Act No. 107 of 1898, reads as follows:

“If the plaintiff in this case, after having made his demand, abandons or discontinues it,, the interruption (of prescription) shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

The Supreme Court, in the matter of Hibernia Bank & Trust Co. v. Zimmerman & Sons, Inc., 167 La. 751, 120 So. 283, 284, held the codal provision above referred to to be applicable to suits pending on appeal, and in that decision is found the following language:

“The codal provision applies to suits pending in this court as well as to suits pending in the inferior courts. New Orleans v. New Orleans Jockey Club, 129 La. 64. 55 So. 711. Since the plaintiff and appellant has failed to take any steps in the prosecution of its appeal during 5 years, it must be considered as having abandoned the suit.”

The facts on which that case was dismissed are identical with those which we find presented here, and here, as there, the motion to dismiss was not opposed. See, also, Teutonia Loan & Building Co. v. Connolly, 133 La. 401, 63 So. 63; Losch v. Greco, 173 La. 223, 136 So. 572.

The motion to dismiss, is sustained, and the appeal is dismissed at the cost of appellant.


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    No. 13,903
    Orleans
    REIMANN CONSTRUCTION CO., INC., v. GLUCK'S RESTAURANT CORP., INC.
    (November 30, 1931. Opinion and Decree.)

      Solomon S. Goldman, of New Orleans, attorney for plaintiff, appellant.
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Reimann Construction Company, Inc., general contractors, formerly operating under the name G. E. & E. E. Reimann Company, Ltd., claim from Gluck’s Restaurant Corporation, Inc., $1,-206.98, with interest, etc., alleging that amount to be the balance due under a contract for the making of certain alterations and additions to buildings occupied by the restaurant corporation. Defendant, having admitted an indebtedness of $370.97, deposited that sum in the registry of the Civil District Court.

Prom a judgment rejecting plaintiff’s demand for any amount in excess of the deposit, plaintiff has appealed.

In argument and brief in this court counsel for plaintiff-appellant concedes that the record does not sustain a portion of his client’s claim and now contends only for the following items in addition to the $370.97 deposited by defendant and already withdrawn by plaintiff from the registry of the court:

Electric power and equipment furnished the tile contractor..$25.00

Electric power and equipment furnished the painting contractor _____________________________________ 20.00

Cleaning and hauling out refuse from work of tile and marble contractors ______________ 66.99

Use of elevator for hauling trash left by tile contractor____ 8.75 $120.74

Interest on last contract payment, which was made in twelve monthly installments, instead of immediately upon issuance of architect’s certificate ____________________________________________ 317.80

$438.54

The claim for $120.74 is alleged to have arisen in the following manner:

In addition to the contract with plaintiff, the restaurant corporation employed a painting contractor and a tile contractor on a so-called cost-plus basis; that is to say, each special contractor was to do the work for which he was employed, keep an account of the cost thereof, and bill the restaurant corporation actual cost, plus a percentage for the profit of the special contractor. In doing their work these special contractors called upon plaintiff for electrical power and equipment, such as lights, elevators, et cetera. Plaintiff, the general contractor, for its own use, had installed an electric meter and elevator, which had been used by the special contractors, with the result that the work done by these special contractors had cost the restaurant corporation less than it would have cost had they been required to install their own electrical equipment; that these special contractors also left debris and trash, which was removed in the elevator furnished by plaintiff; that therefore, since defendant benefited by the use of the electrical equipment of plaintiff, payment therefor should be made.

The charge for interest is based on the allegation that the contract provided that the amount shown to be due in each architect’s certificate should be paid upon the issuance of the certificate and that the final certificate was not so paid, defendant having been allowed to pay same i'n twelve monthly installments; that the interest due as a result of paying the said sum in monthly installments, instead of immediately, amounted to $317.80.

The entire controversy depends for its solution upon questions of fact. Defendant maintains that on September 29, 1927, after all of the items in controversy had been incurred, there was a conference at which were present Mr. Gluck, representing defendant corporation; Mr. Kohlman, the architect, under whose supervision the work was being performed, and Mr. Reimann, representing plaintiff, and that at this conference the architect considered all claims for extras .and all other contentions between the parties, and thereafter issued his final certificate, under which the sum of $5,220.97 was shown to be due to plaintiff; that there was still a balance of $1,000 due on a previous certificate, so that the total amount finally due was $6,220.97; that the final certificate included $3,126.97 for extras and that the identical extra items here involved were presented to the architect for consideration and were disallowed by him when he issued the said certificate; that plaintiff accepted the said certificate and agreed then that the balance shown to be due by the said two certificates might be paid at $500 per month, without interest; that all said monthly payments have been punctually made by defendant and accepted by plaintiff, and that no further sum is ‘due.

Plaintiff denies that the conference of September 29, 1927, was final and contends that at that conference there was had a mere preliminary discussion, it being the intention of the parties to meet later and to come tq a final-understanding. A careful examination of the record and of the architect’s working memoranda shows conclusively that the items which are now claimed by plaintiff were considered and discussed at that meeting and that the certificate which was issued by the architect was only issued after a full consideration of the said items. That certificate was accepted by plaintiff and he cannot now be heard to again claim items which were disallowed by the architect before the issuance of the said certificate.

While the evidence with regard to the agreement by plaintiff to accept the payments in installments without interest is not so conclusive as that with regard to : the disallowance of the items for extras, nevertheless we believe that it preponderates in favor of defendant. If it was intended that interest was to be paid, it is probable that, with each monthly installment of $500, interest would also have been ■ included, and that, if plaintiff intended that interest was to be paid, some claim therefor would have been made prior to the acceptance of twelve monthly payments. It should also be remembered that the work had been considerably delayed, that under the contract demurrage for delay was provided for, and that it would have been perfectly reasonable for the, parties, under such circumstances, to have terminated their entiré differences in just such a manner as we find here.

The record is voluminous and, appar- [ ently, was given very careful consideration by His Honor below, and we are well convinced that the judgment rendered is correct. At any rate it is not manifestly erroneous and, since only questions of fact are involved, it is -ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed.


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    No. 14,027
    Orleans
    THALHEIM v. SUHREN ET AL.
    (November 30, 1931. Opinion and Decree.)
    Andrew H. Thalheim, of Gretna, attorney in proper person, for plaintiff, appellee.
    Deutsch & Kerrigan and Bert Flanders, Jr. of New Orleans, "^attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff’s Hupmobile, parked alongside the curb on the lake side of Carondeiet street some 40 or 50 feet below the corner of Poydras street, was run into and damaged by a Marquette coach driven by Mrs. Lydia Suhren. Plaintiff’s automobile was unattended at the time of the accident, and it is conceded that no fault of plaintiff contributed- thereto. In the original petition it is alleged that the damage sustained resulted from the negligence of Mrs. Suhren, that, at the time, she was on a family mission, and therefore was acting as the agent for her husband, and that the car belonged to Suhren, Inc., a corporation. By these allegations it was sought to hold not only Mrs-. Suhren as the person actually at fault, but also Mr. Suhren and Suhren, Inc.

In defendants’ answer, liability was denied, and it was averred that the proximate cause of the accident was the negligence of a third person, the driver of a truck belonging to the Ringel-Wooddy Box Company, Inc., a corporation, which truck, according to the allegations of the various defendants, was driven, while the crossing light facing it was still red, into the intersection of Poydras and Carondeiet streets, and directly into the path of the Marquette coach, with the result that a collision occurred which caused Mrs. Suhren to lose control of her car to such an extent that, before she could recover control over it, it crashed into the parked Hupmobile of plaintiff. When these answers were filed and plaintiff ascertained that possibly the damage to his car had been caused by the joint negligence of Mrs. Suhren and the driver of the truck, he filed a supplemental petition in which he alleged that the Ringel-Wooddy Box Company, Inc., and the other defendants, were solidarily liable by reason of the negligence above referred to, and he caused that company to be cited to appear and answer the charges of negligence made against it.

The trial court rendered judgment in favor of plaintiff and against Mr. Suhren alone, dismissing the suit as against the other three defendants. From this judgment Suhren appealed, and, in answer to the appeal, plaintiff has asked that the judgment be amended so as to include the other defendants.

We are of the opinion that the other defendants are not properly before this court. If there is any liability in more than one defendant, that liability is solidary, since it results from the acts of joint tort-feasors. The appeal by one joint tort-feasor cannot have any effect as against other joint tort-feasors who, by the judgment in the court below, were absolved from liability. In a situation identical, so far as the pleadings are concerned, we said:

“Plaintiff did not appeal from that part of the judgment which dismissed his suit against Jahncke Service, Inc., but, in an answer to the appeal of the other defendant, Callo, plaintiff asks not only that the amount awarded below be increased, but also that the judgment dismissing his suit against Jahncke Service, Inc., be reversed.
“His answer to the appeal of Callo cannot have the effect of bringing Jahncke Service, Inc., back into the case. If plaintiff was not satisfied with the judgment as rendered, it was his right to appeal therefrom as against the other defendant. Since he did not do so, he cannot by answer to the appeal taken by Callo maintain his, action against Jahncke Service, Inc.
“Nor can the defendant Callo be heard to compfain of a judgment in favor of his co-defendant. Solidary liability rests on joint tort-feasors. Each, if guilty of negligence proximately contributing to an accident, is liable for the whole damage. An injured party may sue either or both and neither has any right as against the other.
“ ‘The liability arising from negligence constituting the offense or quasi offense is to the injured party, but creates no liability, one to the other, of those, to whom the negligence is imputed. * *' *’ Louis Sincer v. Heirs of M. M. Bell, 47 La. Ann. 1548, 18 So. 755.” Rumpf v. Callo, 16 La. App. 14, 132 So. 763, 764.

Whatever may have been the fault of any of the other defendants, failure of plaintiff to appeal as to them deprives us of jurisdiction so far as they are concerned, and the only matter remaining before us is the question of whether or not Mrs. Suhren, the, driver of. the Marquette coach, was at fault, and whether that fault contributed to and had causal connection with the damage sustained by plaintiff’s Hupmobile.

On behalf of the remaining defendant it is contended that the first collision, that between the Marquette and the truck, was caused solely by the negligence of the driver of the truck, and that this collision created an emergency in which Mrs. Suhren lost control of her car to such an extent that, before she could regain control over it, it had crashed into the second car, and, if the evidence sustained this contention, of course there would be no liability. In a situation very similar to that which we find here, we held that an innocent third party could recover only from the person at fault in. creating the initial dangerous situation and emergency. Middleton v. Seither, 14 La. App. 471, 131 So. 594. Of course, however, the mere fact that a collision occurred, which, conceding arguendo, was not contributed to by the fault of Mrs. Suhren, would not be of assistance to her In relieving her of liability, for a subsequent accident occurring at s6me time later, or at some distance farther on, if a reasonably prudent and reasonably experienced driver, even laboring under excitement and notwithstanding the first crash, could have avoided the second. Therefore, before attempting to place the blame for the first collision, we deem it expedient to determine whether that first collision had or had not any causal connection with the second. The evidence leaves no room for doubt that the first collision took place more than a hundred feet prior to the occurrence of the second, and that the speed of the car driven by Mrs. Suhren was considerably greater than that of a prudently driven automobile. Some of the witnesses fix the speed at 35 miles per hour, others as high as 40, and we have come to the conclusion that,, regardless of whether or not the driver of the truck of the¡ Ringel-Wooddy Box Company, Inc., was negligent in that he drove into the intersection in the face of a red traffic signal, Mrs. Suhren was guilty of negligence in that she operated her car at a speed greatly in excess of that permitted by law. She was therefore to some extent at fault in causing or contributing to the cause of the first collision. Then, too, even under the exciting circumstances which no doubt followed, we believe that a reasonably prudent person and a reasonably careful competent operator could have brought her car to a stop in less than 100 feet after striking the first car. Thus, regardless of who was at fault in causing the first accident, Mrs. Suhren should have stopped her car before it crashed into plaintiff’s automobile.

The amount of the judgment below, $171.-65', is amply sustained by the evidence, and therefore the judgment appealed from is affirmed.