41 So.2d 209 (La. 1949), 38985, Cassar v. Mansfield Lumber Co.

Docket Nº:38985.
Citation:41 So.2d 209, 215 La. 533
Party Name:CASSAR et ux. v. MANSFIELD LUMBER CO., Inc. et al.
Case Date:April 25, 1949
Court:Supreme Court of Louisiana
 
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Page 209

41 So.2d 209 (La. 1949)

215 La. 533

CASSAR et ux.

v.

MANSFIELD LUMBER CO., Inc. et al.

No. 38985.

Supreme Court of Louisiana

April 25, 1949

Rehearing Denied May 31, 1949.

[215 La. 536] Cawthorn & Golsan, Mansfield, for plaintiffs-appellees-applicants.

R. C. Gamble, Mansfield, and Cook, Clark & Egan, Shreveport, for defendants-respondents.

Page 210

McCALEB, Justice.

Anthony C. Cassar, his wife and his liability insurance carrier joined as plaintiffs to recover damages resulting from an automobile accident occurring in October 1945 on the public highway near Leesville, Louisiana when a Plymouth automobile driven by Cassar collided with a truck of the Mansfield Lumber Co. Inc. as it was in the process of overtaking and passing the truck which was making a left turn from the highway into a gravelled cross-[215 La. 537] road. Alleging that the accident was caused by the negligence of the truck driver in attempting a sudden and abrupt left turn into the side road without previous warning, plaintiffs sought recovery of the following damages: Mrs. Cassar $17,500 for her personal injuries; Mr. Cassar $894 for property damage and expenses incurred in the treatment of his wife's injuries and New York Underwriters Insurance Company $652.83 representing the damage sustained by the Plymouth.

The defendants, Mansfield Lumber Co. Inc. and its insurer, filed a joint answer admitting the accident and that the truck driver was acting in the course and scope of his employment. They denied liability, however, asserting that the truck driver was without fault; that he was proceeding along the highway at a slow rate of speed and that he gave a proper hand signal for the left turn in ample time to assure the safety of approaching vehicles; that the accident was solely attributable to the negligence of Cassar in that he was travelling at an excessive rate of speed; that he failed to maintain a proper lookout and have his car under control; failed to sound his horn and to observe the signal given by the truck driver. Alternatively, they pleaded the contributory negligence of Cassar in bar of plaintiffs' recovery.

After a trial in the District Court, there was judgment in favor of Mrs. Cassar for $5,000 and for the other two plaintiffs in [215 La. 538] the amounts prayed for in the petition Defendants appealed to the Court of Appeal for the Second Circuit and Mrs. Cassar answered asking for an increase in the award in her favor. The Court of Appeal reversed the judgment of the District Court, insofar as Cassar and his insurer were concerned, holding that Cassar was guilty of contributory negligence, barring recovery. But the court found that his negligence could not be imputed to his wife, as she was a guest without control over the operation of the automobile, and that defendants were responsible for her injuries because the truck driver was not without fault. The court, however, thought the award in favor of Mrs. Cassar was excessive and reduced it to $3,500. See 35 So.2d 797. Plaintiffs thereafter secured writs of certiorari and review and the matter has been submitted for our decision.

Preliminarily, it is well to point out that, since defendants did not apply for and obtain a writ of review, the judgment of the Court of Appeal cannot be changed to plaintiffs' detriment. Section 11 of Article VII of the Constitution; D. H. Holmes Co. v. Morris, 188 La. 431, 177 So. 417, 114 A.L.R. 905 and cases there cited. Hence, the question respecting the negligence of the truck driver has been foreclosed by the judgment of the Court of Appeal. The only matters for consideration are (1) whether Cassar was guilty [215 La. 539] of negligence which precluded his and his insurer's recovery and (2) whether the award for Mrs. Cassar's injuries is inadequate.

The accident occurred at about 12:00 noon on a clear day upon Highway 171 at a point approximately four miles from Leesville where the highway is intersected from the west by a gravelled road. The highway runs North and South, the paved portion being 18 feet in width abutted by gravelled shoulders. The Lumber Company's 1 1/2 ton truck, operated by its colored driver, was proceeding north in the direction of...

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