text:
    No. 3584
    Second Circuit
    GROSCH v. DIXIE OIL COMPANY, INC.
    (March 24, 1930. Opinion and Decree.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Hunter, Morgan & Hunter, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

The district judge before whom this case was tried submitted a written opinion in which he has stated the issues, his findings of fact, and his conclusions. That opinion in full is as follows:

"Plaintiff sues for compensation at the rate of $20.00 per week-for four hundred (400) weeks for a total disability alleged to have resulted from an accident which occurred at about eight o’clock on the morning of May 5th, 1928. The plaintiff testified that he was foreman or gang pusher of a gang of men in the employ of the Dixie Oil Company, defendant, on said date, and at the time of the alleged accident, he and six other men were attempting to move a ten-inch pipe about twenty feet long. That there were 'four men carrying the pipe 'at the front end and two men and himself carrying same at the rear end of said pipe. That the pipe was being carried on carrying irons or sticks, one man at the end of each stick used, with the exception of himself, and that he was assisting in the carrying of the pipe by inserting a stick in the rear end of same. That one of the men on the front end stumbled or slipped and dropped the load, and simultaneously therewith, the other man, in order to avoid injury, dropped the load, and that it fell upon him, dislocating and severely injuring his spine. That immediately thereafter he reported the matter to one Gore, his superior. That said Gore requested him to continue work as they were short of men. That he stayed on the job until about 12:30, at which time he went home and sent for a doctor.
“He was corroborated in his testimony by two witnesses, Adel Ivans and Paul Good-son, both of whom were assisting in carrying the load on the front end. Ivans testified that when he looked back, after having dropped the pipe that the plaintiff was bending over "mightily”, and complained of having hurt his back, and that the plaintiff called Mr. Gore and told him that he had hurt his back but that he did not know how bad but he would like to go home, but that the plaintiff did not go home but hung around until about noon.
“Paul Goodson, who was also assisting in carrying the front end of the load, testified to practically the same state of facts.
“Undoubtedly, the plaintiff has received’ an injury to his back, the objective symptom of which is obvious, both to sight and touch. It consisted in the slipping forward otf the fourth lumbar vertebra for at least a half inch on the fifth lumbar vertebra, and has an o’utward appearance of a slight indentation in the region of the fourth lumbar' vertebra and a pronounced protuberance of the fifth lumbar vertebra.
“The experts who. testified in the case are all of the opinion that the displacement resulted from traumatism, and that when ,said traumatism occurred, plaintiff suffered immediately an intense and acute pain in the region of his back.
“It therefore appears that on the day alleged an incident occurred which may have caused the injury complained of. That the injury complained of did result from said incident, is testified to by the plaintiff and his said testimony is corroborated by the objective evidence of the injury and the negative evidence of himself and other witnesses to the effect that he had no injury to the back prior to the date of the incident.
“We are of the opinion, however, that the plaintiff’s testimony, and the testimony of the witnesses who appeared for him, is rendered highly improbable by the conduct of the plaintiff immediately following the accident. The normal reaction of a person receiving so severe an injury with so marked an objective symptom thereof could not be in keeping with that of plaintiff. A person acting normally under such circumstances, and in keeping with the ordinary course of human conduct, would be expected to immediately guit work, report the accident to those in authority, reguest that he be taken home and that something be done to alleviate the pain and intense suffering which he would be expected to have in the region of the injury. Following this, it would be expected that such person, under such circumstances, would immediately demand compensation from the defendant, his employer.
“But, as shown by a fair preponderance of the testimony in the case, what actually occurred was this: that the plaintiff continued on the job from the time of the alleged accident without particular complaint of pain in the region of the back until noon, at which time he reguested that he be allowed to go home, stating at the time that he was not feeling very well. He did not report to his superiors that an accident had occurred. He was taken home where he sent for his physician, Dr. Collins. Dr. Collins found, upon his arrival, that the plaintiff was suffering with pleurisy with effusion, and that he had fever of 103-104 degrees. The plaintiff made no mention, so far as Dr. Collins could recall, of an accident or an injury to his back.
“On May 14th, 1928, the plaintiff was taken by Dr. Collins to the Highland Sanitarium for an X-ray examination, and there it was found by Dr. Rutledge that the plaintiff was suffering with pleurisy with effusion. Plaintiff on that occasion made no mention of an injury to his back and no X-ray picture was made at that time of that particular region.
“The plaintiff continued to be ill for a period of approximately four months, and although during that time he received no compensation from the defendant, he made neither demand nor eomplaint.
“Dr. Adair, expert radiologist, made an examination of plaintiff in November, 1928, and found a good deal of destruction of the fourth and fifth lumbar vertebrae with excessive destruction and ankylosis between those two vertebrae and the sacrum, with tilting of the vertebrae above that toward the left. He expressed the opinion that nature’s repair had gone on in the region of the injury for a period of years; that the bony tissue was of such density in the region of the repair that it would take at least a year or two to build up so strong a fusion.
“Dr. Barrow, who made an X-ray examination of plaintiff, testified that in the region of the injury the lines of contact were so heavy and dense that they did not indicate a recent injury, and that while it was possible that the injury occurred as late as May 5th, 1928, he was inclined to think that it occurred before that time.
“None of the physicians or radiologists expressed the opinion that the injury eomplained of was contemporaneous with the alleged accident.
“Seven witnesses placed on the stand by the defendant testified that the plaintiff had told them of an injury to his back prior to May 5th, 1928, the date of the alleged accident. Four of them testified that they felt, at the reguest of plaintiff, the objective symptom of an injury or dislocation of the spine upon his back prior to the date of the alleged injury on May 5th, 1928.
“We must, therefore, conclude that in view of the remarkable conduct of the plaintiff, which is not at all in keeping with the ordinary conduct of human beings under like circumstances, considered with the evidence that his disability existed pri- or to the alleged accident, that the plaintiff was not injured on May 5th, 1928.
“It is contended by counsel for plaintiff that if a previous weakness to the back existed, and as a result of thé accident on May 5th, 1928, the disability of the plaintiff was augmented or accelerated, the plaintiff should nevertheless recover. We do not think that plaintiff can recover on this theory in view of his positive testimony and that of his witnesses that he had no weakness in the region of the back prior to May 5th, 1928, and for the further reason that all of the testimony shows that the dislocation or displacement was caused by traumatism of a severe character.
“We are of the opinion that the injury was neither received nor accelerated on the date alleged.
“The plaintiff, having failed to make out his case with legal certainty, his demands should be rejected.”

Counsel for appellant strenuously insists that the district judge erred in his findings on the facts.- We find in the record counsel’s application for a new trial made in the district court and have before us his exhaustive brief filed in this court, and in both we note the specific points on which it is claimed that the district judge erred. With this motion for a new trial and the brief before us, we have carefully read the record and have checked the evidence, page for page, in order to ascertain whether the judge did in fact err in his findings. Our conclusion is that he did not.

Counsel for appellant in his application for a rehearing and also in brief states that Dr. Collins, the physician to whom plaintiff went for treatment, testified that plaintiff did complain to him of an injury to his back. Counsel is in error, as Dr. Collins gave no such testimony. Dr. Collins did state that within one or two days after plaintiff went to him, he did complain of pains in his back or spine, but explained that plaintiff complained that he was aching from his head to his feet, which was, in the opinion of Dr. Collins, natural for the reason that plaintiff had pleurisy with effusion and fever of 103 to 104 degrees. Dr. Collins specifically testified that plaintiff did not at any time complain of any acute pain in his back and if he mentioned any injury, he has no recollection of it. Dr. Collins diagnosed plaintiff’s case as one of pleurisy. He carried plaintiff to the Highland Sanitarium in Shreveport, where he was examined by Dr. Rutledge. Dr. Rutledge confirmed Dr. Collins’ diagnosis and treated him for pleurisy, extracting fluid from the pleural cavity. Dr. Rutledge says that neither the plaintiff nor Dr. Collins said anything to him about plaintiff’s having received an injury to his back. Plaintiff was Dr. Collins’ patient and was carried by him to the sanitarium for relief. Dr. Collins was not employed by the defendant company. It is wholly unreasonable, we think, to assume that if, as a matter of fact, plaintiff had told his physician that he had suffered an injury to his back while at work, the physician would have failed to mention that fact to Dr. Rutledge; and further, if plaintiff had been suffering from an injury to his back, it would seem reasonable that he would have told Dr. Rutledge so, even though he had failed to mention it to Dr. Collins. The testimony shows beyond question that such an injury as plaintiff claims he suffered while at work on May 5th would cause acute pain and suffering. One of the doctors testified that a slipping of the joint was in the nature of a dislocation, causing a tearing and laceration of the tissues and ligaments, and was likened to the spraining of an ankle, or any other joint, and would necessarily bring on immediate, intense pain. Plaintiff made no complaint of any such pains.

The testimony shows that a man, named LeBlanc, had his foot injured when the piece of piping was dropped, and that plaintiff walked over to where LeBlane was and advised him to put in his claim for compensation. Plaintiff was therefore acquainted with the rules and the usual procedure in such matters, but he put in no claim for himself at the time and made none until in the month of August, four months later. He says he told Mr. Gore and Mr. Hodges that he had been injured. Mr. Gore and Mr. Hodges both emphatically deny that. Mr. Gore says that plaintiff approached him during the day, told him that he was feeling bad and that he would like to get off and see a physician, but that he said not a word about having been injured.

Counsel for appellant says that plaintiff was not able to go to the office and make claim for compensation sooner than he did. But Mr. Means, assistant superintendent, met plaintiff in Vivian in the month of July; plaintiff was then up and walking around, but made no claim for compensation until a month later.

As the district judge held, the testimony shows beyond question that at some time in his life plaintiff had suffered an injury to his back, hut, taking the record as a whole, it cannot be held that he suffered that injury on May 5th while at work for the defendant company, as plaintiff alleges; nor can it be held that, assuming that plaintiff did have a weak back at that time, his weakened condition was accelerated or augmented while at work for defendant. Several witnesses testified that plaintiff told them that his back had been injured in some way through the handling" of a gas engine at some time previous to May 5th. That testimony is corroborated by radiologists who testified that the condition of the spinal column at the region of the injury indicated that the injury was suffered before May 5th. There is testimony in the record which, construed alone, would warrant a finding that plaintiff was •injured as he says he was. But we cannot rest the case alone upon those portions of the testimony which are favorable to plaintiff and ignore altogether that which is against him.

Our conclusion, after reading and checking the more than 200 pages of testimony, is that plaintiff has utterly failed to make out his case. The judgment appealed from is affirmed.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3612
    Second Circuit
    CARTER v. BOLDEN ET AL.
    (March 24, 1930. Opinion and Decree.)

      Parsons & Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Pegues & Pegues, of Mansfield, attorneys for defendants, appellants.
   DREW, J.

Plaintiff brings this suit seeking to have declared null and void the transfer of 120 acres of land executed by her in favor of her daughter, the defendant Candice Bolden. The property purports to have been conveyed by plaintiff to her daughter in the following manner:

1. An act of sale dated February 13, 1926, for a recited consideration of $900, conveying sixty acres of land.

2. An act of donation inter vivos from the plaintiff to her daughter, dated February 13, 1926, conveying sixty acres of land.

Plaintiff alleges that said 120 acres of land was and is the only property owned by her, and that she is not physically able to earn a living for herself; and that the acts of defendant Candice Bolden and her husband, James Bolden, in taking title to all her property have deprived her of any means of subsistence and forced her to accept the charity of relatives.

Plaintiff claims she was induced to sigh the act of sale by the false and fraudulent misrepresentations of the defendants, who represented to her that it was their intention to make provision for building a home for petitioner' and to provide a place for her to live for the balance of her life; and that the object of the execution of the deed was to enable them to mortgage the property and get money to build petitioner a home; that petitioner, being illiterate, unable to read or write, signed the same without understanding that she was dispossessing herself of ownership of said land; that no consideration was at the ■time or since paid for said land; that petitioner was induced to sign the act of donation upon the representation of defendants that they would care for, maintain, and support petitioner during the balance of her life. Petitioner denies that defendants have complied with the obligation to care for and maintain and support her, and alleges that defendants have failed to build a home for her, although defendants did secure money by mortgaging said property.

Plaintiff prays that the act of donation and act of sale be declared null and void for the reason that the same constituted and effected a donation and conveyance without consideration, which deprived her of all her property, without reserving to herself enough for her subsistence, and were prohibited donations.

In the alternative, plaintiff prays that the acts of transfer should be set aside for failure of defendants to fulfill the obligations imposed on them, and for ingratitude, alleging cruel treatment and neglect.

Defendants deny the essential allegations of plaintiff’s petition and claim that the act of donation herein attacked was executed prior to the act of sale and that the said act of sale was a bona fide sale for a just consideration of $900, which they claim was paid; that they were kind to plaintiff at all times; and that she lived in their home for two years after the said acts of transfer were executed, when she became dissatisfied and moved to the home of a grandson.

Plaintiff had been living from place to place with different friends and relatives for a number of years, and, being very old, nearly eighty years, desired a permanent home the balance of her life. She moved to the home of her daughter, the defendant, and agreed to donate to said defendant all of ¡her property, consisting of the 120 acres here involved, in consideration of the love and affection she had for her and the promise of defendant to build for plaintiff a home in which to live during the remainder of her life, and to . care for, maintain, and support her.

Defendant, a negro woman above the average in intelligence, inquired of Mr. W. C. Pegues, Jr., a lawyer, as to the legality of such a donation, and was advised by Mr. Pegues that a donation of all of plaintiff’s property would not hold in law and advised that she accept a donation of one-half of the property and take a deed for the other half, telling defendant that the sale would have to be a bona fide sale for a just and fair consideration; the law applicable being fully explained to defendant. At a later date, defendant, with her mother, the plaintiff, went to the office of Mr. Pegues and the entire matter was fully explained to the plaintiff. On this same day, February 13, 1926, there was prepared in the office of Pegues & Pegues the act in question here; the act of donation was prepared in the morning and fully executed, and the act of sale was prepared and executed in the afternoon. The donation was filed for record at about 4 o’clock in the afternoon of that day, and the act of sale was filed for record a day or two afterwards. Defendant made a check, payable to plaintiff, for the $900 consideration in the act of sale, and the check was given to plaintiff with instructions not to lose it. What became of the check afterwards is not clear, but it is certain that the check was never cashed and was never presented to the bank, and until now, plaintiff has never received anything in payment of this sixty acres of land. Defendant has never tendered to her the money and did not tender it on trial of this case. Defendant had made some arrangements to draw on the bank for the necessary money at the time she gave the check; however, she did not have the money of her own and would have had to borrow from the bank and secure the bank by mortgage after the check was cashed. She at no time since has been to the bank to see if the check was cashed or to finish her arrangements with the bank in regard to the loan. Plaintiff says that defendant took the check out of her handbag or trunk on returning home, which is denied by defendant. Plaintiff further testifies that defendant told her the papers were no good and she had no deed for them.

The testimony shows clearly that plaintiff originally intended to transfer all of her property to defendant by act of donation inter vivos, and that defendant intended to accept same until she learned from her lawyer that such a transfer would conflict with a prohibitory law, and that defendant then conceived the idea of surrounding that law by taking half of the property by donation inter vivos and then take cash deed to the remainder of the property and to pay for it in form only, never intending to have plaintiff to receive for her own use the consideration shown in the act of sale. The act of sale was clearly a subterfuge and was in effect a donation of the sixty acres of land.

The two acts are regarded as one and the same transaction and should be read together and taken together, and the parties can take nothing by separating the two acts. Their connection is clear.

An act of donation by a widow of all her property to her children, reserving none for her subsistence, is void, under Revised Civil Code, art. 1497, notwithstanding the obligation of the children. to support her for life. Rocques vs. Freeman, 125 La. 60, 51 So. 68.

The jurisprudence of this state is that the parties may put their agreements into whatever forms they determine. A contract of security may be in the form of a sale.

“Whatever he the name given to an act, its character, when necessary, may be ascertained by inquiry into the nature of the transaction and the intent of the parties to it.” Keough vs. Meyers, 43 La. Ann. 952, 9 So. 913; Ford vs. Parsons, 142 La. 1095, 78 So. 128.

Douglass vs. Douglass, 51 La. Ann. 1456, 26 So. 546, is a case of an absolute sale, the true nature of which the wife was allowed to show by parol. A large number of cases are there cited, and the rule on this point is authoritatively announced. Caldwell vs. Trezevant, 111 La. 410, 35 So. 619; Hamilton vs. Moore, 136 La. 634, 67 So. 523.

The lower court rendered judgment in favor of the plaintiff, Fanny Carter, and against the defendants, Candice Bolden and her husband, James Bolden, avoiding, annulling, and setting aside the following instruments of transfer, to-wit:

(a) That certain purported act o(f sale executed by Fanny Carter to and in favor of. Candice Bolden, dated February 13, 1926, before Wm. C. Pegues, notary public, for a recited consideration of $900, and which appears of record in Book 72 of Conveyances, Folio 513, in the recorder’s office of De Soto parish, La.;

(b) That certain purported act of donation inter vivos executed by Fanny Carter to and in favor of Candice Bolden, dated February 13, 1926, executed before Wm. C. Pegues, notary public, and which appears of record in Book 44 of Conveyances, p. 22, in the recorder’s office of DeSoto parish, La.;

And recognizing Fanny Carter to be the true and lawful owner of the property referred to in said annulled acts, described as follows: S 1/2 of NW1/4 of section 12, and SE1/4 of NE1/4 of section 11, in township 12 north of range 16 west, La. Mer., containing 120 acres, more or less; and restoring to Fanny Carter the possession and control of same.

It further reserved to plaintiff, in accordance with prayer of petitioner, the right to sue for any damages accruing to her for any valid alienations or incumbrances placed by defendant on said property, or caused to her by reason of said transaction.

We think the judgment of the lower court is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed; defendants and appellants to pay costs of appeal.


author: ODOM, J.

text:
    No. 3705
    Second Circuit
    BRYAN v. MAGNOLIA GAS CO. ET AL.
    (March 24, 1930. Opinion and Decree.)

      Bertram F. Barnette and Goff & Goff, of Arcadia, attorneys for plaintiff, appellant.
    Pugh, Grimmett & Boatner, F. Simon, Harry V. Booth, of Shreveport, and Atkins & Meadows, of Homer, attorneys for defendants, appellees.
   ODOM, J.

J. Audie Bryan was killed in an automobile accident due to a collision between the car he was driving and another automobile, on August 22, 1928. There survived him a widow, Mrs. Idenna Bryan, and two minor children, issue of the marriage. Mrs. Bryan brought this suit for damages for herself and her children, alleging that the accident which caused the death of her husband and the father of her children was due to the gross fault and negligence of J. M. Furrh, Jr., or those for whom he was responsible, and that Furrh was an employee of the Magnolia Gas Company. The suit is for damages against both Furrh and the gas company. Plaintiff’s demands were rejected by the lower court and she appealed.

The facts pertinent to the issue are as follows:

J. Audie Bryan was traveling east in a Ford car on a graveled highway twenty-five feet wide from shoulder to shoulder. An automobile belonging to defendant, Furrh, was parked on the south side of the road near the edge, and, approximately eighty-four feet farther east, there , was parked near the edge on the same side of the road a truck loaded with iron piping, which truck also belonged to Furrh. This automobile and truck, being on deceased’s right-hand side of the road, caused him to swerve his car to the left in order to go by them, and he got over on his extreme left-hand side of the road. Between the parked car and the truck, a side road comes into the main highway from the north side, or on deceased’s left-hand side. This side road enters the highway at a point about sixty feet east of where the automobile was parked, and about twenty-four feet west of where the truck was parked. -About the time deceased’s car reached the point where the side road enters the highway, a man, named Lynn, employed by Furrh, one of the defendants, drove another Ford from the side road onto the highway. The ■ two cars collided and deceased’s car turned to the right, angling across the highway, the left-hand side striking the rear end of the piping on the truck, went off the road, ran about thirty-six feet across the ditch and landed. Deceased’s left arm was resting in the car window and extended beyond the edge of the car. His arm struck the end of the piping and was torn practically off or, as a physician expressed it, “was traumatieally amputated.” He soon died, as a result of the shock and the loss of blood.

It is alleged, and the testimony shows, that the side road out of which Lynn drove his car up on the highway was a “blind” road. Along the edge of the highway on the north side, deceased’s left side, there were willow bushes eight or ten feet high and weeds sufficient to completely obstruct one’s view from the highway of a car coming out on the side road, until such car was up on the embankment. Likewise, one driving a car over the side road could not see a car approaching on the highway. Plaintiff charges that it was gross negligence for Lynn to drive up on the highway, as he did, in front of the on-coming car of deceased, and that his negligence in so doing was the sole cause of the accident. On the other hand, defendants allege and contend that Lynn was guilty of no negligence and, in the alternative, that if he was, his negligence was not the cause of the collision; but, to the contrary, the collision and accident were caused by the gross negligence of deceased in leaving his side of the road and getting too close to the left-hand edge thereof, and in running at such an excessive rate of speed that he lost control of his car, which, negligence, it is claimed, so contributed to the accident as to bar recovery.

Lynn is the only one who knows just what he did, just what his movements and actions were before going on the highway. The collision itself was witnessed by several persons who were going west on the road in a car, but they were quite a distance away and saw nothing but the collision. All they could say was that the cars ran together on the road in front of them; they noticed neither car until the moment they ran together. Lynn’s testimony, therefore, as to the precautions he took before going on the road is uncontradicted. His story of the tragedy is as follows:

He was working for Mr. Furrh, who was a general contractor, stringing pipe along the north side of and parallel with the highway for a gas pipe line; that he was superintending the work and had his car over on that side of the road; that he had occasion to drive back to the main road over this side road; that there was a ditch parallel with and a few feet from the highway, which ditch was bridged; that after he crossed the bridge, he stopped and listened for cars, and, hearing none, he then changed into low gear and proceeded slowly up the embankment (the crown of ' the highway being three feet, seven inches above the level of the bridge) until his front wheels were on the edge of the road, from which position he “glanced” to see if there was anything coming, and was getting ready to( pull onto the highway and turn to his right, “and that instant the new Ford came up on my right and hit me.” He said further that he could see some distance up the highway to his left from where he was when his front wheels, got to the edge of the road, but that he could not see so well in the other direction from which deceased’s car came. If Lynn did just what he said he did, and his testimony is not contradicted on that point, it cannot be said that as a matter of law he was guilty of negligence. He says he stopped and listened before proceeding, and that he proceeded slowly and cautiously, and that the front wheels .of his automobile were not more than three feet upon the highway when the collision took place.

Blashfield, in his Encyclopedia of Automobile Law, vol. 1, p. 551, states the general rule as follows:

“One driving slowly from a private driveway into the highway, his car drifting with the force of inertia, is not required to extend his observation beyond a point where vehicles .moving at a lawful speed would threaten his safety. And a motorist, in driving an automobile from a private land into a highway, the view of which is considerably obstructed by a hedge, beyond which there is a comparatively short space in which to stop the car at sight of an approaching automobile, cannot be said as a matter of law to be under any obligation to stop his car before coming out on the road, getting out of it, and going outside of the hedge on foot to look up and down the road for approaching vehicles before proceeding.”

See Sherwood vs American Railway Express Company, 158 La. 43, 103 So. 436.

The very rigid “stop, look and listen” rule adhered to by our courts and by the courts of other states, and as finally stated by the United States Supreme Court in the case of Baltimore & Ohio Railroad Company vs. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A.L.R. 645, does not apply in case of a motorist approaching a highway from a side entrance and for a very good reason. Motorcars do not run on fixed rails or tracks as do trains and are lighter and more easily controlled. Railroad trains have the right of way at all crossings and intersections and, in open territory, remote from congested sections, may run at any speed consistent with the safety of their passengers. Motorcars running on main highways have the right of way over those who enter them from the side over less favored channels. But no motorist, even though he have the right of way, is absolved from using caution at all times, and the degree of caution to be observed depends upon the conditions and surroundings. The greater the danger, the greater is the degree of care to be used. Barret vs. Caddo Trans. & Whse. Co., 165 La. 1975, 116 So. 563, 58 A.L.R. 261; Buckley vs. Featherstone Garage, Inc., 11 La. App. 564, 123 So. 446.

It is the duty of the driver of a motorcar, before entering a main highway, to look and listen for approaching cars and, if his view of the highway is obstructed, he must use extreme care. But he is not required to leave his vehicle, walk to the highway, and see if anyone is approaching. He must anticipate the presence of vehicles on the highway and if he tries to cross or enter without using due care, he is negligent. "Whether due care is observed in any case must be determined by the court or jury from the facts taken in connection with the surroundings. In this case, the only testimony before us shows that Lynn approached the highway slowly and cautiously, and he says that he stopped and listened while his car was at the bridge over the ditch. The only additional precaution that he could have taken would have been to get out of his car, go to the road and look. That was not necessary because when he got the front wheels of his car upon the edge of the road he could see to the left a sufficient distance to observe that no car was approaching from that direction, and a car coming from that direction would ordinarily, under the law of the road, be on the north side of the road, the side from which he was entering. His duty was mainly to guard against the approach of cars from that direction, for that was their side of the road. He did not intend or attempt to cross the road, but only to turn to the right up the highway. He had a right to assume that cars approaching from that direction would be on the opposite side of the road, or, at least, would not be on the extreme north side, as deceased’s car was when the collision took iplace. As already stated, the parked car and the truck on deceased’s right-hand side of the road made it nécessary for him to swerve to the left in order to avoid a collision with them. But it was not necessary for him to drive as close to his left-hand side of the road as he did. Neither the automobile nor the truck were parked on the side of the road immediately opposite the entrance of the side road. We leave this particular point to be discussed more in detail later.

The surroundings were such that Lynn was under the obligation of using extreme care. According to his testimony, he did that, and there is no one to dispute him. He says that he stopped and listened, proceeded slowly and cautiously.

However, if it be conceded, as counsel for plaintiff contend, that Lynn was guilty of negligence, it is unquestionably true that deceased was also negligent. Contributory negligence in cases of this kind bars recovery. But not every act of negligence on the part of a motorist can be said to be “contributory negligence” as a matter of law, and it is only contributory negligence in its legal sense which bars recovery. Collisions between motor vehicles on public highways are generally due to the negligence of someone, and frequently to the negligence of both parties. In Pepper vs. Walsworth, 6 La App. 610, we held that plaintiff was guilty of negligence in not having his car properly equipped with a light on the rear end, but allowed him to recover due to the negligence of the other driver, because we found that defendant’s negligence was the proximate cause of the collision; in other words, that whereas plaintiff was negligent, his negligence did not have in it the element of proximate cause. We there quoted the following from 28 Cyc. p. 38:

“The act or omission alleged to be negligent must always be the proximate cause of the injury in order to be actionable; and so too must the alleged contributory negligence be, in order to bar recovery, such that the injury would not have been sustained except for such negligence.”

In Blashfield’s, vol. 2, p. 1209, it is stated:

“As stated in a previous chaipter, the law of contributory negligence is a part of the doctrine of proximate cause, and, before an illegal act or omission can be held to be contributory negligence, it must appear that there was a causal connection between such act or omission and the injury complained of. The mere collateral wrongdoing of the injured person cannot of itself defeat a right of recovery for the injury if it did not proxima.tely contribute thereto, and, although one injuied in an automobile accident may have been guilty of negligence, yet, if his negligence did not so contribute to his injury as that, but for such negligence on his part, he would not have received the injury, it will not bar recovery.”

Contributory negligence is defined in 29 Cyc. p. 505, as follows:

“Contributory negligence in its legal significance is such an act ■ or omission on the part of plaintiff, amounting to an ordinary want of care, as concurring or cooperating with the negligent act of defendant .is the proximate cause or occasion of the injury complained of.”

See Words and Phrases, First, Second and Third Series, verbo “Contributory Negligence.”

The defense of contributory negligence necessarily implies and assumes negligence in the other party. Assuming that Lynn was guilty of negligence, plaintiff cannot recover because deceased was also negligent, an'd his negligence amounted in law to contributory negligence.

The uncontradicted testimony of uisinterested witnesses shows that, just before reaching the place where the two cars collided, deceased was running at approximately fifty miles an hour in a light Ford car, with his left arm resting in the window, and that he did not check his speed until the collision took place is indicated by the fact that his car struck the other one such a blow as to turn it completely around, after which deceased’s car ran diagonally across the road twenty-four feet where it struck the ends of the pipe loaded on the truck, and then proceeded some thirty-five or forty feet farther over the embankment and lodged in the brush. This testimony of the eyewitnesses and these physical facts indicate that deceased was guilty of reckless driving and did not have his car under control. The parked automobile and the truck were necessarily seen by deceased and their presence on the road, with the truck loaded with piping, should have suggested to him that there were persons in or about them who might at some moment emerge from behind either, or attempt to cross the road from the opposite direction. Such conditions would necessarily prompt an ordinarily prudent driver to check his speed and bring his car under control. If deceased had done that, the collision would not have taken place. The presence of the automobile and the truck made it necessary for him to swerve to the left, and we think it was not negligence, necessarily, for him to drive to the extreme left-hand side of the road; but it was gross negligence for him to proceed at such a reckless rate of speed as made it impossible for him to control his car. If he had reduced his speed and brought his car under control and had kept the proper lookout, he could have seen Lynn’s car coming up on the highway in ample time to swerve slightly to his right and avoid a collision. He had ample space in which to do that. Lynn says the front wheels of his car were not more than three feet out in the highway when it was struck. Counsel for plaintiff argue that his car was entirely up in the road. Their argument on this point is one which, like the two-edged sword, cuts both ways. Lynn proceeded slowly and if his car had gotten entirely up in the road it should and could have been seen by deceased in time to avoid the collision, if deceased had oeen looking ahead and had had his car under control. A reading of the record leaves us in no doubt that deceased was proceeding on the highway recklessly, and without any regard whatsoever for his own safety or the safety of others. His negligence was such as to constitute the proximate cause of the collision, and plaintiff therefore cannot recover.

The district judge submitted a written opinion in which he discussed all the facts in detail. He reached the conclusion that plaintiff could not recover, .and in his views we concur.

The judgment is affirmed, with all costs.


text:
    No. 3616
    Second Circuit
    MANGET BROS. v. HENRY
    (March 24, 1930. Opinion and Decree.)

      Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff’s Chevrolet automobile, driven by its employee, Blunt, collided with defendant’s Ford truck, loaded with lumber and driven by a colored chauffeur on a public highway. The automobile was wrecked, and plaintiff brought this suit to recover the damage.

Plaintiff alleges that the collision was due solely to the fault and negligence of defendant’s chauffeur in driving on the wrong side of the road. Defendant, in answer, denied that his chauffeur was on the wrong side of the road and alleged that he was guilty of no negligence at all, but, on the contrary, alleged that the accident was due solely to the negligence of the driver of plaintiff’s car in driving on the wrong side of the road.

The collision took place in the daytime while plaintiff’s driver was going towards Natchitoches and the defendant’s truck was being driven in the opposite direction, towards Robeline. The automobile and the truck met on a curved portion of the road which is improved with gravel eighteen feet wide, with a shoulder three feet wide on either side of the gravel. The collision took place on the left-hand side of the road, going to Natchitoches, or on plaintiff’s wrong side of the road, and therefore on the truck’s right side of the road. But Mr. Blunt, who was driving plaintiff’s car, testified that he was driving on his right-hand side of the road when he saw defendant’s truck meeting him on the same side, or on the truck’s wrong side of the road. He says that when he first saw the truck approaching on the wrong side of the road, he assumed for the moment that the driver of the truck would turn to the right, or to his right side of the road; but that as the two vehicles came near together, he realized that the truck driver would not turn to his right side of the road and, realizing that if the two vehicles proceeded straight ahead there would be a head-on collision, he suddenly turned his car to the left in order to go around the truck on his left side of the road. He says further that about the time he turned his car to the left, the colored chauffeur turned to the right with his truck, and the two cars collided.

The colored chauffeur was called as a witness, and testified that he was not at any time on his wrong side of the road, but, on the contrary, was driving on his right side, and that for some reason, unknown to him, the driver of plaintiff’s car turned over to that side of the road. The testimony of the two drivers is therefore contradictory. The other testimony, however, leaves us in no doubt that defendant’s chauffeur was driving on the wrong side of the road. When the two vehicles came to rest after the collision, plaintiff’s car was found with its rear wheels over in the ditch and the front wheels upon the dump on the left-hand side of the road, going to Natchitoches. Defendant’s truck, which was loaded with lumber, was found at a slight angle across the road, with the left front wheel a little to the right of the center of the road and the rear left wheel about twelve inches to the left of the center. Several parties, including defendant himself, who visited the scene shortly after the collision, found skid marks on the road immediately back of the truck, showing that the driver, a moment before the collision, had applied his brakes in order to stop, and these skid marks, as stated, extended about fifteen feet back of the truck. The position of the truck when it came to rest and the direction of the skid marks show that the truck at the time of the collision was being turned over to its right-hand side of the road. This corroborates Mr. Blunt’s testimony that the truck, when he first saw it, was on its wrong side. The colored chauffeur testified that he was driving on his right side, and that as soon as he saw plaintiff’s car coming, he turned further over to the right. His testimony that he was driving on the right side of the road cannot be true, because the truck, when it came to rest, was not on the right-hand side of the road, but slightly to the right of the center of it.

If the truck driver were driving on the right side of the road, as he says he was, there would have been no necessity, of course, of his turning to the right on meeting another car. The driver of plaintiff’s car, Mr. Blunt, testified that as the two vehicles came near together, it appeared to him that the driver of the truck took notice, or “waked up,” and turned tQ the right. There are portions of the colored chauffeur’s testimony which lead to the conclusion that Mr. Blunt was probably correct in his surmise that the colored chauffeur was paying no attention. The colored boy was asked several times during his examination how far the two vehicles were apart when he first saw the Chevrolet approaching, and several times he stated that they were almost together.

Another significant fact is that Mr. Henry, the defendant, after talking with a colored boy who was riding on the seat with the chauffeur, was convinced that his driver was wholly at fault. Immediately after the collision, Mr. Blunt was carried to a physician’s office in Natchitoches where he was attended. While in the physician’s office, Mr. Henry told him in the presence of others that the accident was due to the fault of his driver who was driving on the wrong side of the road, and stated that he had insurance to cover whatever damage Mr. Blunt had sustained on account Of his personal injuries, but that his insurance did not cover the loss on the car. Mr. Henry had received his information as to how the collision occurred from the colored boy who was riding with his chauffeur. At the interview in the physician’s office, Mr. Henry, it seems, entertained no doubt that he was liable for whatever damage that had been done. But, after going to the scene of the collision and finding his truck in the position described above, he reached the conclusion that probably his driver was not on the wrong side of the road, and he later denied liability for that reason. At the time he had the conversation with Mr. Blunt in the physician’s office, Mr. Henry had not talked with his chauffeur. The colored boy, who had informed Mr. Henry as to how the accident happened, was not called as a witness for either side.

The testimony convinces us that defendant’s chauffeur was driving on the wrong side of the road and that his doing so was the cause of the collision.

The circumstances in this case are almost identical with those described in the case of Goodson vs. Schuster’s Wholesale Co., Inc., 10 La. App. 486, 120 So. 689, 692, where we held, in accordance with decisions of our Supreme Court and in line with the jurisprudence of other states, that “one compelled to turn to the left and wrong side of a road to avoid a collision, because of another person’s violation of the law of the road, is not negligent.” Potter vs. Glassell, 146 La. 687, 83 So. 898; Schick vs. Jenevein, 145 La. 333, 82 So. 360; 13 R. C. L. 286-288; Bragdon vs. Kellogg, 118 Me. 42, 105 A. 433, 6 A. L. R. 669.

The testimony amply supports the conclusion that plaintiff’s driver turned to the left in order to avoid a head-on collision with defendant’s truck. His doing so was not negligence.

Learned counsel for defendant have cited in brief Elliott on Roads and Streets (3d Ed.) secs. 1079, 1080, 1081, and 1082, pp. 618, 619, 620, and 621, in support of the proposition that, as a general rule, “one may travel upon any part of a highway not occupied at the time by another, but if he meets another traveler whom he desires to pass, or who desires to pass him in either direction, there are certain rights and duties which each must observe in order to avoid a collision.”

It is not negligence per se for one to drive in the center or on the wrong side of the road, but it is negligence for one on the wrong side of the road to fail to turn to the right on meeting another vehicle. Further quoting from the authority cited by counsel:

“The first and most important rule is, that in meeting, each party shall bear or keep to the right. If there is no statute on the subject, proof of this custom is not necessary for the court will take judicial knowledge of it.
“One who violates the law of the road by driving on the wrong side of the way assumes the risk of all such experiments, and must use greater care than if he had kept on the right side of the road. If a collision takes place, the presumption is generally against the party on the wrong side.”

The eminent authority cited by counsel does not help his case. The rule laid down by Mr. Elliott is the same as that which is laid down by all the text-writers and by the courts, and that is that whereas it is not negligence per se to drive on the wrong side of the road, yet it is the duty of one who thus violates the law of the road to turn to the right on meeting another vehicle and that his failure to do so is negligence; and that it is not negligence for another to turn to the left or wrong side of the road in order to avoid a collision.

We think defendant is clearly liable in this case. The district judge rejected plaintiff’s demands; but, as we understand from counsel, he did so because plaintiff failed to prove the quantum of damage. We gather from the record that this is true because the minutes of the court of April 16, 1929, read as follows:

“Case heretofore tried and taken under advisement by the court, judgment now rendered in favor of the plaintiff, leaving the question of value of the car wrecked open, value to be determined after further evidence.”

Counsel for plaintiff made a strenuous effort to have the case reopened for the purpose of showing the damage sustained, which he had failed to prove accurately; but the court refused to permit him to introduce further testimony and finally rendered judgment against the plaintiff, rejecting his demands.

The testimony found in the record as to the damage sustained to plaintiff’s car is not such as to warrant the court in fixing any specific amount. The testimony shows that the car was almost completely wrecked, but it does not show the value of the car. It was practically a new car which cost $732.50 when new; but there is no testimony to show when it was purchased nor the extent to which it had been used. There is testimony to show that plaintiff was offered $50 for the wrecked car.

We think the court should have reopened the case in order to permit further testimony as to the damage done, or should have dismissed plaintiff’s suit as in case of nonsuit. We think, in the interest of justice, the judgment appealed from should be set aside and the case remanded for the restricted purpose of permitting testimony to establish the quantum of damage. Such has been the practice of the Supreme Court and of this court, and is authorized by article 906 of the Code of Practice. See Favrot vs. Chappuis, 147 La. 1054, 86 So. 492; In re Tucker, 153 La. 47, 95 So. 396; Brasher vs. Grant, 1 La. App. 457; Traylor vs. Murphy, 2 La. App. 593; (Gunn, 3d Opponent) Bordages & Tierney vs. Mrs. Marie J. Staggers, 3 La. App. 343.

For the reasons assigned, the judgment appealed from is set aside; and it is ordered that the case be remanded to the district court for the purposes herein stated; costs of appeal to be paid by appellee, all other costs to await final results.


author: WEBB, J.

text:
    No. 3713
    Second Circuit
    McDaniel v. Smith et al.
    (March 24, 1930. Opinion and Decree.)

      Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    A. M. Wallace, of Benton, attorney for defendants, appellees.
   WEBB, J.

G. W. Smith obtained judgment against Richard McDaniel on February 1, 1909, for $437.10, with legal interest from judicial demand, which judgment was revived on a decree signed May 5, 1919.

On January 19, 1929, Smith had a writ of fieri facias issued on the judgment, and on the same date the sheriff, acting under the writ, seized certain described land, said to contain one hundred ninety acres, as the property of McDaniel, and on April 1, 1929, Smith had another writ of fieri facias issued on the judgment, and on the same date the sheriff, acting under the writ, seized a one-fifth interest in certain described land, said to contain eight hundred eighty acres.

The property seized on April 1, 1929, was advertised for sale, and, on May 24, 1929, McDaniel brought the present action against Smith and the sheriff to prevent the sale.

Plaintiff alleged that the judgment had been novated on February 19, 1923, at which time, he alleged, he had given Smith a note for $1,953.25, secured by mortgage on the property above referred to as having been seized on January 19, 1929, and that the amount of the note included the amount of the judgment.

Plaintiff further alleged that he acquired the property seized on April 1, 1929, by inheritance, and that he and his co-heirs had partitioned the land described; that in the partition proceedings the property above referred to as having been seized on January 19, 1929, had been drawn by him; that he was residing on the property, which was worth less than $2,000 and that the same was his homestead and exempt from seizure and sale, etc.; that, in order to protect his rights, it was necessary that a writ of injunction issue restraining and prohibiting Smith and the sheriff from selling the property, and he prayed that a rule issue ordering the defendants to show cause, etc., and on final trial for judgment decreeing the judgment under which the property was seized to have been extinguished by novation, and ordering the property released from seizure, and, in the alternative, for judgment decreeing the property seized to be his homestead and exempt from seizure, and enjoining defendants from selling same.

The rule to show cause was issued, and on the return day a temporary injunction was issued and the case fixed for trial on the merits.

The defendants, in answer, admitted the seizure of the property, and otherwise denied plaintiff’s allegations, and evidence was introduced and the cause submitted, but' was reopened on motion of plaintiff, who pleaded that the judgment had prescribed.

The cause being again submitted, judgment was rendered rejecting plaintiff’s demands and dissolving the injunction, and plaintiff moved for, and was granted, an appeal to this court.

This court has no jurisdiction, in so far as the demand for recognition of any right of homestead in the property seized is concerned, but the homestead claim was made in the alternative, and, as it will not be necessary to consider that question, in event the judgment is held to have been extinguished by novation or prescription, we conceive that it is our duty to pass upon those questions. Adams vs. McCoy, 188 La. 421, 70 So. 420; Green vs. Kettler, 144 La. 374, 80 So. 594.

As to the plea that the judgment was novated, it is conceded that novation is not presumed, and that, where it 'is claimed a judgment has been novated by a note, the proof should be conclusive, and without reviewing the evidence as to novation, we deem it only necessary to say that the proof fell far short of establishing even that the amount due on the judgment was included in the amount of the note.

• Relative to the plea of prescription, we gather from the brief and argument of counsel for defendant and appellee that it is contended the period of prescription was interrupted or suspended by the seizure of the property, and that the interruption or suspension continued during the pendency of the injunction proceedings.

There were, however, as stated, two seizures, one of date January 19, 1929, and the other of date April 1, 1929, and, as the seizure of date January 19, 1929, is not mentioned, and as it is argued that the period of prescription did not begin to run until May 5, 1919, the date on which the decree of revival was signed, we assume the seizure of date April 1, 1929, is relied upon as having interrupted or suspended prescription.

As previously stated, the original judgment was signed on February 1, 1909, and, if the revival of the judgment extended it only from February 1. 1919, the judgment had expired on the date of the seizure on April 1, 1929, and the first question presented is whether the period of prescription began to run on the date the decree of revival was .signed or on February 1, 1919.

Article 3547 of the Civil Code provides that all judgments for money shall be prescribed by the lapse of ten years, and it has been held that the action to revive the judgment is not a new ■ suit, that the effect of the revival is only to continue the judgment in full force, and that the judgment revived is the same as the original judgment (Scherrer vs. Caneza, 33 La. Ann. 314; Hayden vs. Slaughter, 43 La. Ann. 385, 8 So. 919), and we are of the opinion that the judgment of revival related back to the date the original judgment would have expired, or February 1, 1919, that prescription began to run on that date, and that the judgment had prescribed at the date of the seizure on April 1, 1929.

However, if the period of prescription did not begin to run until the date the decree of revival was signed, and the seizure of date April 1, 1929, was prior to the expiration of the judgment, or if the seizure of January 19, 1929, should V considered, we are of the opinion that neither interrupted or suspended the period of prescription.

Article 3547 of the Civil Code provides that a judgment may be revived at any time before it is prescribed by having a citation issued according to law, and it was said in Bailey vs. Louisiana & Northwest Railroad Co., 159 La. 576, 105 So. 626, that the method provided was intended to be the only method of preventing the prescription of a judgment, or, as we understand, the only method by which the period of prescription may be interrupted is by citation as the statute directs.

The judgment appealed from is therefore avoided and reversed, and it is now ordered that the plea of prescription be sustained, and that plaintiff have and recover judgment against the defendants decreeing the judgment of date February 1, 1909, as revived on May 5, 1919, prescribed, and ordering the property seized thereunder released; defendants to pay all costs of suit.

DREW, J., recused.


author: WESTERFIELD, J.

text:
    No. 13,299
    Orleans
    THE CUDAHY PACKING CO. OF LA. v. LONGO
    (April 19, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    Stephen C. Hartel, of New Orleans, attorney for plaintiff, appellee.
    Dan Wendling, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a meat packer against a butcher on an open account in the sum of $275.22. The question presented is whether credit was extended to the defendant, Stephen Longo, or to a party by the name of Jones, a tenant of Longo, who was in actual charge of the butcher shop. The lower court held that Longo was responsible for1 the amount, and, from a consideration of the evidence in the transcript, we are unable to say that this finding was erroneous.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 3754
    Second Circuit
    INDEPENDENCE INDEMNITY CO. v. CARMICAL & WOODRING ET AL.
    (March 24, 1930. Opinion and Decree.)

      Roberts & Naff, Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendants, appellants.
   WEBB, J.

Strubbe McConnell, a building contractor, was constructing a building, and two of his workmen were making an excavation for the foundation of the building, and loading the dirt from the excavation into a motortruck which had backed in and parked next to the excavation. The truck had been sent to the premises on instructions from McConnell in charge of a driver in the employment of defendant, Carmical & Woodring, a partnership engaged in the business of leasing trucks and furnishing drivers to operate them to contractors to be used by them in connection with their work, and the driver who parked the truck had left it in reverse gear, and, after the truck had been loaded, the driver cranked the motor and the truck backed into and injured the workmen who had loaded it, and compensation was paid them by the plaintiff, Independence Indemnity Company, the insurance carrier of McConnell.

The present suit was instituted by the insurer against the partnership and the individual members of it, S. E. Carmical and C. C. Woodring, to recover judgment against them in solido for the .amount of compensation paid by the insurer to the injured workmen under its contract with McConnell, and defendants appeal from a judgment against them.

The action is based upon the provisions of article 2315 of the Civil Code, which gives a right of action to any one injured through the fault of another, and article 2320 of the Civil Code, which declares that masters and employers are answerable for damage occasioned by their servants and overseers in the exercise of the functions for which they are employed, and there is not any question raised as to the right of the insurer to exercise the rights of the injured employees against the person or persons responsible for their injury, to the extent of the amount of compensation paid the employees (London Guarantee & Accident Ins. Co. vs. V., S. & P. Ry. Co., 153 La. 287, 95 So. 771), and the defences urged by the defendants in the trial court were that the driver of the truck (who is conceded to have been negligent) was not, at the time of the accident, in the employment of the partnership but in the employment of McConnell, and that the partnership could not be held liable, under the provisions of article 2320 of the Civil Code, for the negligence of the driver; and, further, that in event it should be held the driver was in the employment of the partnership at the time of the accident, that Strubbe McConnell had been guilty of negligence which had contributed to the accident, and plaintiff, claiming through McConnell, could not recover; and, last that the partnership was not a commercial partnership and the members of the partnership could not be held liable in so-lido with the partnership.

The defense that the partnership was not responsible for the negligence of the driver of the truck is based upon many decisions from other jurisdictions where it is held that where one lets the use of an automobile or motortruck, and chauffeur, to another, the latter may, for the time being, be alone responsible for any damage resulting from the negligence of the driver.

Counsel concede that the rule can be applicable only where the general employer has released control of the employee or chauffeur, and the right of control is in the person who has the use of the automobile or motortruck and chauffeur, and that the question of the right to control the chauffeur is one of fact.

Or, as we understand it, it is not urged that the mere fact that the general employer, owner of the truck and employer of the chauffeur, lets the use of the truck and chauffeur to another raises any presumption that the general employer has released control of the chauffeur; or, in other words, that, in the instant case, the mere f^ct that the partnership let the use of the truck and driver to McConnell raised any presumption that the contractual relationship of employer and employee existing between the partnership and the driver was suspended, and a like relationship created between McConnell and the driver of the truck; but, on the contrary, it is conceded that the relationship between the partnership and the driver must be presumed to have continued with the consequent legal liability of the employer for the negligence of his employee, in the absence of proof that McConnell had control of the driver of the truck at the time of the accident. Labatt, Master & Servant, vol. 1, #53-54; Boroughf vs. Schmidt (Mo. App.) 259 S. W. 881; Billig vs. Southern Pac. Co., 189 Cal. 477, 209 P. 241; Standard Oil Co. vs. Anderson, 212 U. S. 215, 29 S. Ct. 252, 53 L. Ed. 480; Densby vs. Bartlett, 318 Ill. 616, 149 N. E. 591, 42 A. L. R. 1406, and note at 1416.

The evidence, as stated, established that the partnership was engaged in the business of hiring out trucks and furnishing drivers to operate them at the price of $1.50 per hour, and that the partnership had been accustomed to furnishing McConnell with trucks and drivers at the above-named rate, and that in the instant case the custom was followed, the truck and driver being furnished to remove dirt taken from the excavation from the premises, and apparently the sole fact upon which appellants base the contention that McConnell had control of the driver is that the driver had first parked the truck lengthwise next to the excavation and that, under the instructions of McConnell, the driver had removed the truck from that position and backed the truck and parked it with the rear end next to the excavation.

In the editorial note, following the report of the decision in Densby vs. Bartlett, supra, in 42 A. L. R. at page 1416 it is stated that “from an examination of the decisions touching the question under discussion, it is apparent that it is extremely difficult to establish that the hirer is responsible for the negligence of the chauffeur furnished with a hired car, particularly if the owner happens to he engaged in the business of hiring out ears or trucks”; and considering that the partnership was engaged in the business of hiring out trucks and furnishing drivers to operate them, we do not think that the mere fact that McConnell instructed the driver where to park the truck so that it could be loaded established that the partnership released control of the driver or that the driver was under the control of McConnell. Boroughf vs. Schmidt, supra; Norwegian News Co. vs. Sinkovitch, 112 Misc. Rep. 141, 182 N. Y. S. 595; Thatcher vs. Pierce, 281 Pa. 16, 125 A. 302.

There was not any evidence of any agreement between McConnell and the partnership that McConnell should be responsible for the negligence of the driver, nor was there any evidence indicating that the driver of the truck was expected to do or that McConnell directed him to do any work which was without the scope of his employment with the partnership, or that McConnell interfered with the driver or directed him as to the manner of operating the truck, or that any action of McConnell’s prevented the driver from properly operating the truck; and there was not any fact established which indicates that the relationship of employer and employee existing between the partnership and the driver of the truck was suspended, or that such a relationship was created between McConnell and the driver of the truck, or that the nature of the work in which McConnell was using the truck and driver was such as necessarily required that McConnell should have control of the driver of the truck.

Defendants do not suggest that the injured employees were guilty of any negligence; but, assuming that contributory negligence on the part of McConnell could affect the right of the injured employees or plaintiff to proceed against another whose negligence contributed to the accident, we do not think the evidence established that McConnell was guilty of any negligence. The fact upon which it is urged that McConnell was negligent is that the truck was parked under his instructions in such position that it could be backed into collision with the workmen; but it is not shown that it was unsafe to park the truck in that position unless the negligence of the driver should have been anticipated, which is not suggested.

There .was not any evidence offered which tended to show that the partnership was formed for the purpose of buying or selling personal property, or carrying such property in ships or other vessels, or that the partnership was engaged in any such transactions, and we do not think the business of hauling materials for contractors, or hiring out trucks, placed the partnership in the class of commercial partnerships, within the meaning of article 2825 of the Civil Code (Eberle vs. Schmidt, etc., Co., 9 La. App. 378, 119 So. 442), and we think that the liability of the partners was joint and not in solido or joint and several.

It is therefore ordered that the judgment be amended, and that the plaintiff, Independence Indemnity Company, have judgment against the partnership of Carmical & Woodring for the sum of $348.41 with legal interest thereon from April 19, 1929, until paid, and against S. E. Carmical and C. C. Woodring, the members of the partnership, for said sum and interest, jointly; and, as amended, the judgment is affirmed. Plaintiff to pay cost of the appeal, and all other costs to be paid by defendants.


text:
    No. 3764
    Second Circuit
    STATE EX REL. JOHNSON v. STEPHENS, JUDGE ET AL.
    (March 24, 1930. Opinion and Decree.)
    Breazeale & Hughes, of Natchitoches, attorneys for relator.
    Rusca & Cunningham, of Natchitoches, attorneys for respondents.
   WEBB, J.

The relator, L. H. Johnson, owns and operates a hotel in the city of Natchitoches, in the parish of Natchitoches, La., and relator obtained electric power used in operating the hotel from an electric power plant operated by the city of Natchitoches.

The city rendered relator a bill on November 1, 1929, for service during the preceding month of October, showing a charge of $109.70 for power or current used, and $15 for a “standby” charge from October 14th to November 1st, and relator tendered the amount charged for power or current used, but refused to pay the amount of the “standby” charge. The city refused the tender, demanding that the full amount charged, including the “standby” charge, be paid, and threatened to disconnect its power plant from plaintiff’s premises and discontinue the service unless relator would pay the full amount of the bill.

Relator then instituted suit against the city of Natchitoches in the Tenth judicial district court of the parish of Natchitoches, in which he, in substance, set forth the facts above stated, and he further alleged that the “standby” charge was unreasonable and that there was not any ordinance of the municipality authorizing same, and that he would sustain an irreparable injury if the municipality should execute the threat to disconnect its electric plant from the hotel premises, and he prayed that a mandatory injunction issue ordering the municipality to accept the amount tendered for power or current used, and also that the municipality and its officers be restrained and prohibited from disconnecting its electric power plant from the hotel premises, and that on trial the “standby” charge of $15 be declared null and void, and the municipality enjoined from disconnecting its electric plant from the hotel premises.

A rule nisi was issued against the municipality and its officers ordering them to show cause why a preliminary injunction should not be issued restraining and prohibiting them from disconnecting the municipal electric power plant from the hotel premises, and, on trial of the rule, a preliminary injunction was issued.

The defense interposed was, in substance, that Johnson had installed an electric power plant in his hotel and had announced that he would not require power from the municipal plant, except in case of emergency, as where his private plant should break down, or greater power should be required than his plant would generate, and that, by an agreement between the municipality and Johnson, an arrangement was made that the connection between the municipal plant and the hotel premises would be maintained, and that Johnson would pay for that service $30 per month, and for such current or power used by him from the municipal plant at the usual rates.

Defendant further alleged that under its regulations in operating its plant it was known and understood that in event of any one failing to pay the charges for service from its plant the service would be discontinued, and that by reason of the injunction it had been prevented from carrying into effect its regulations,' and had been damaged for attorney’s fees, and defendant prayed for the dissolution of the injunction with damages for attorney’s fees, and that plaintiff’s demands be rejected with cost.

On trial the injunction was dissolved, plaintiff’s demands rejected, and judgment awarded defendant municipality damages in the sum of $25, attorney’s fees, and plaintiff, Johnson, moved for an appeal, suspensive and devolutive, returnable to this court, which was refused.

Plaintiff, Johnson, then applied to this court for the issuance of an alternative writ of mandamus against the judge, to show cause why an appeal should not be granted, and the writ having been issued, it is urged, in answer, that the amount in contest was only $15, which is concededly below the jurisdiction of this court, and it is urged that the appeal was properly refused.

The action was against the municipality, and, under the provisions of sections 35 and 48 of article' 7 of the Constitution 1921, district courts are given exclusive original jurisdiction of all civil actions where a municipality is a party defendant, and, under section 29 of article 7 of the Constitution 1921, Courts of Appeal are given appellate jurisdiction of all civil actions of which the district courts have exclusive original jurisdiction of which the Supreme Court is not given jurisdiction.

There is not any suggestion that the Supreme Court has jurisdiction, and even considering that the sole issue raised related to the correctness of the “standby” charge and that the amount involved was ■only $15, we are of the opinion the appeal should have been granted.

It is . therefore ordered that the alternative writ of- mandamus issued herein be made peremptory, and accordingly that the judge of the Tenth judicial district court of Natchitoches parish, Da., grant relator> D. H. Johnson, an appeal, suspensive and .devolutive, from the judgment rendered in the cause of L. H. Johnson versus City of Natchitoches, No. 20671, on the docket of said court, ,returnable to this court according to law, on relator’s furnishing appeal bond in such amount as the court may fix and determine.


author: JANVIER, J.

text:
    No. 11,820
    Orleans
    ZIEGLER ET AL. v. LAMANTIA
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    John D. Miller, of New Orleans, attorney for plaintiffs,- appellants.
    Arthur Landry, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiffs are the father and mother, respectively, of Sterling K. Ziegler, a 12-year-old boy, who died as the result of injuries received when,- at about 7:35 at night, a bicycle on which he and another boy were riding was in collision with a Dodge coupe automobile, owned by defendant and driven by his minor son.

The accident took place on Magazine street, between 50 and 100 feet below the intersection of Valence street.

The facts, as they appear in the testimony, differ, to a large extent, from the allegations in reference thereto, as we find those allegations in plaintiff’s petition, but, as no objection was raised by defendant to the testimony offered by plaintiffs at variance with the petition, we are not concerned with the case as alleged in the pleadings, but need only determine the question of whether the evidence sets forth a case of liability.

It may be well, however, to set forth the allegations of the petition, which are at variance with the proof.

In the petition it is charged that defendant’s automobile was being driven “out Valence Street toward Magazine Street, from the direction of the Mississippi River, with the intention of turning downtown on Magazine at Valence Street. * * *” The evidence shows that the automobile at no time had been on Valence street, but had for several blocks been proceeding down Magazine street.

Another allegation in the petition which we are unable to understand is contained in paragraph 4, which reads as follows:

“That about 7:30 or 7:35 P. M. petitioner’s son, Sterling K. Ziegler, twelve years of age, was on a bicycle on Magazine Street, between Valence and Cadiz Streets, which bicycle was near the lake or wood side curbing of said Magazine Street, which section of Magazine Street is intended for the use of vehicles traveling uptown.”

Since the bicycle was traveling downtown and not uptown, it appears that this allegation is, in effect, an admission that the bicycle was being ridden the wrong way, or against traffic.

The true facts, as we gather them from the record, are that the little boy was sitting on the frame of the bicycle, which was being propelled by the other boy, who was older, and who was sitting on the seat; that the bicycle had for some time been following a downtown bound street car, and was being ridden between the two rails of the downtown street car track; that the street car had stopped to discharge passengers on the lower side of Valence street; that the Dodge coupe was also following the street car, and that it pulled to its left in an effort to pass the street car. Up to this point there is no material conflict in the testimony.

Plaintiffs contend that the bicycle had pulled to the left also, and that when the automobile, traveling at high speed, made its maneuver to the left, it crashed into the bicycle, and then skidded across the lakeside portion of Magazine street, and only stopped when its left front wheel struck, the lakeside curb.

Defendant, on the other hand, maintains that the rider of the bicycle gave no intimation of his intention to turn to the left until the Dodge coupe had already turned to its left, out of the car tracks, and had reached a point alongside the bicycle, and that, when the two vehicles were side by side, the bicycle then turned to its left, and the driver of the coupe then turned further to his left and put on his brakes in an effort to prevent the bicycle from striking the side of the automobile.

The witnesses, for plaintiffs, in addition to the older boy, were a Mr. Falcon, who was driving his automobile up Magazine street, and who saw the Dodge turn suddenly to its left and crash into the sidewalk; a Mr. Pell, who was standing on the corner at which the street car had previously stopped; a Mr. Roser, who was on Magazine street about 75 feet from the crossing; a Mr. Boone, who was conductor of the street car, and who states that he looked around and saw the automobile hit the bicycle from the rear; and a Mrs. Valenti, who was on the uptown lake corner of Magazine and. Valence streets. We find it very difficult to determine from the evidence just exactly what actually occurred, but the one significant fact which stands out is that the automobile of defendant was unquestionably approaching the bicycle from the rear and at an unusual speed. This is shown by the testimony of various witnesses. Mr. Pell, to whom we have referred, with reference to the sound made by the application of the brakes of the automobile, said:

“Q. How long did that noise of brakes last?
! “A. I could not say positively, but I heard it make a terrible racket. After it happened, I stepped the distance from the time he put his brakes on until the time he stopped. It was around between forty and forty-five feet, something like that.”

Mr. Roser noticed the skid marks made by the automobile and on this subject testifies:

“Q. Do you remember how long a distance along the (pavement those marks were?
“A. Well, I guess about forty or forty-five feet.”

Mrs. Valenti stated that what called her attention to the automobile> was the squeaking of the brakes and the crash into the sidewalk.

Boone, the conductor of the street car, who manifestly had nothing to call his attention to the automobile except the noise which it made, stated:

“After we were about a car length from the corner I heard an automobile skid, turned .around and I saw the boys fall down and the automobile roll over one of them.” ■ ■

As we have stated, it is very difficult to determine just what the boys on the bicycle were doing immediately prior to the collision, but it is admitted by the driver of defendant’s car, his minor son, that he saw the bicycle with the two boys on it. It is also in evidence that the street car had stopped, and it is therefore reasonable to assume that the boys were proceeding around the left side of the street car just as the defendant’s automobile was doing. Under these circumstances the driver of defendant’s car owed to the young boys the highest degree of care. See Burvant vs. Wolfe, 126 La. 787, 52 So. 1025, 29 L.R.A. (N.S.) 677; Moore vs. Vance, 4 La. App. 353; Albert vs. Munch, 141 La. 686, 75 So. 513, L.R.A. 1918A, 240.

It is very evident that the driver of the Dodge coupe was not exercising the care required under the circumstances. Seeing the two boys on one bicycle in front of him, or somewhere near the path which his automobile must traverse, it was his duty to reduce his speed to a minimum and to keep his attention constantly focused on the boys. This he did not do, and, as a ■ consequence, his father, the owner of the automobile, is liable.

It is impossible to determine accurately just what damage parents sustain whose minor children are killed. We believe that, in view of the age of the boy, an award of $2,500 to each of the parents is consistent with awards by this and the Supreme Court in similar cases.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of plaintiffs and against defendant in the sum of $2,500 to each, with interest from judicial demand, and for all costs.


text:
    No. 13,379
    Orleans
    BARNETT FURNITURE CO., INC., v. BOMMARITO
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (April 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    McLoughlin & West, of New Orleans, at-, torneys for plaintiff, respondent.
    Theo. Cotonio, of New Orleans, attorney for defendant, relatrix.
   JANVIER, J.

Relatrix seeks to prohibit the execution of a final judgment rendered against her.

She was made defendant in the matter entitled Max Barnett Furniture Co., Inc., vs. Mary Bommarito, No. 165,982 of the docket of the Civil District Court for the parish of Orleans, and, in that suit, a money judgment was rendered against her. She has filed in the Civil District Court a petition asking the annulment of that judgment on the ground of fraud, and praying for an injunction restraining execution thereof.

On the filing of the petition for nullity, she obtained a preliminary restraining order temporarily restraining the execution of the judgment referred to.

When the matter came before the district court, the judge thereof suggested that the whole case be tried on the merits, and this was agreed to. After trial on the merits, the restraining order was dissolved and judgment rendered for the Max Barnett Company, Inc., and an attorney’s fee of $25 for dissolving the injunction was awarded to that company. Prom this judgment relatrix applied for and obtained a suspensive appeal.

The Barnett Company, Inc., thereupon proceeded with the execution of the judgment in the former matter, and relatrix now seeks our aid to prohibit that execution. She contends that the suspensive appeal granted her should have the effect of enjoining the execution of the former judgment.

We do not agree with her in this contention. The agreement to try the matter on the merits was not tantamount to a stipulation that the preliminary injunction should be considered as having issued. The issuance of an injunction is a matter separate and distinct from the question presented on the merits of a case. It was only a restraining order which had been in effect, but which was dissolved, and, under section 5 of Act No. 29 of 1924, “no appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order.” Therefore, if the suspensive appeal was intended to continue in effect the restraining order, it was not within the power of the district judge to grant such an appeal.

Since no preliminary injunction was ever issued, the suspensive appeal cannot be considered as having continued in effect something that never came into existence in the first instance. A suspensive appeal may continue an injunction in effect, but it cannot create an injunction where one has never issued.

We think the facts bring this case within the doctrine announced by the Court of Appeal for the second circuit in Hanna Motor Co. vs. Wilson Williams, 6 La. App. 177, in which that court said:

“The intervenor when he went to trial on the merits knew there had not been any preliminary injunction issued, and that if the trial court decided against him on the merits, the restraining order would ipso facto fall.”

For these reasons we are of the opinion that relatrix is not entitled to the relief prayed for, and it is therefore ordered that the writ issued be, and it is hereby, recalled; all costs to be paid by relatrix.


text:
    No. 3717
    Second Circuit
    RUSSELL v. LOUISIANA OIL REFINING CORPORATION
    (March 24, 1930. Opinion and Decree.)

      Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for- defendant, appellant.
   DREW, J.

This suit grows out of an automobile accident that happened at the intersection of Pierre avenue and Ford street in the city of Shreveport, La.

Plaintiff, driving a Ford sedan, was traveling north on Pierre avenue, and defendant’s car, driven by one of its employees, on a mission of duty for the defendant corporation, was traveling west on Ford street.

All four sides of this intersection have “Slow” signs, and neither street is a right of way street. Plaintiff, it is shown, on reaching the' intersection, slowed down to eight or ten miles an hour before proceeding into the intersection, and had passed the center of the intersection when he was struck by 'defendant’s car, which was traveling at least twenty miles per hour, or more than twice as fast as plaintiff’s car. Defendant’s car did not slow up its speed on entering the intersection, and the uncontradicted testimony in the record is that the driver of the car stated that there were no brakes on the car and that he could not slow up. When he saw that he was going to run into plaintiff’s car, he attempted to turn to the right and cut around him, but failed. Plaintiff’s car was turned completely around by the impact of defendant’s car, and defendant’s car proceeded down the street a distance of from thirty feet to two hundred yards, as testified by witnesses, before it could be brought to a stop. The preponderance of the testimony is that defendant’s car ran nearly the distance of half a block before it was stopped and returned to the scene of the accident, which indicates that it was making considerable speed at the time it ran into plaintiff’s ear.

Plaintiff used every care and precaution in attempting to cross the intersection. Hé reduced the speed of his car to ten miles an hour, was traveling on the right-hand side of the street, and had his car under control. Defendant’s driver was traveling at an excessive rate of speed to cross the intersection, did not reduce the speed of his car on approaching the intersection, and was driving the car without brakes. He was grossly negligent and his negligence was the sole cause of the accident.

Plaintiff sued for the sum of $300, and the lower court rendered judgment in his favor for the sum of $125. Plaintiff, appellee, has answered the appeal, and prays that the judgment of the lower court be increased to $300. The evidence shows that plaintiff’s car can be repaired and put in good running order for $125. It was a secondhand car when plaintiff bought it for $300 and had been used by him for two years.

We think the award of the lower court is correct.

It is therefore ordered, adjudged, and gecreed that the judgment of the city court of the city of Shreveport, La., be affirmed. Defendant, appellant, to pay the cost of the appeal.