Denham v. Taylor

• Decision Date: 01 December 1930
• Docket Number: 710
• Citation: Denham v. Taylor, 131 So. 614, 15 La. App. 545 (La. App. 1930)
• Court: Court of Appeal of Louisiana — District of US
• Parties: DENHAM ET AL. v. TAYLOR ET AL

131 So. 614

15 La.App. 545

DENHAM ET AL. v. TAYLOR ET AL

No. 710

Court of Appeals of Louisiana, First Circuit

December 1, 1930

Rehearing Refused January 26, 1931.

Writs of Certiorari and Review Refused by Supreme Court March 2 1931.

Appeal from the Nineteenth Judicial District Court, Parish of East Baton Rouge. Hon. George K. Favrot, Judge.

Action by Guy D. Denham et al. against David H. Taylor, Jr., and Joe D. Millender.

There was judgment for plaintiffs against defendant Millender and for defendant Taylor. Plaintiffs and Millender appealed.

Judgment affirmed in part, reversed in part and amended in accordance with opinion.

Judgment affirmed in part, reversed in part and amended in accordance with opinion.

Paul G Borron and Jess Johnson, of Baton Rouge, attorneys for plaintiffs, appellants.

Taylor, Porter, [ILLEGIBLE WORD] & Brooks, of Baton Rouge, attorneys for defendant, appellee.

Sachse & Breazeale, of Baton Rouge, attorneys for defendant, appellant.

OPINION

MOUTON, J.

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

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

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

Plaintiffs and Millender appeal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Testifying at the coroner's inquest, Millender stated he was in St. Napoleon street when he saw the sedan, and was asked the following question:

"Q. You knew which street had the right-of-way?

"A. North Boulevard."

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

At the coroner's inquest he was testifying in reference to the collision, and then...