Guillory v. Horecky
| Decision Date | 27 April 1936 |
| Docket Number | 33813 |
| Citation | 185 La. 21,168 So. 481 |
| Court | Louisiana Supreme Court |
| Parties | GUILLORY v. HORECKY et al |
Judgments of the Court of Appeal, First Circuit, and trial court set aside and annulled, and judgment rendered for plaintiff.
Lewis & Lewis, of Opelousas, for relator.
Carmouche & Carmouche, of Crowley, for respondents.
O'NIELL, C. J., absent.
OPINION
Plaintiff instituted this suit against John Horecky and his insurer Maryland Casualty Company, for $ 10,000 damages for the death of her eleven year old daughter whom she alleged was struck and killed on the 7th day of April, 1933, by the truck and trailer of defendant, John Horecky, as the result of the negligence of defendant's employee, Roy Malbrough, who was operating the truck at the time within the scope and course of his employment, and that John Horecky held a contract with the Maryland Casualty Company insuring him against liability arising from the negligent operation of the truck and trailer.
Defendants first filed exceptions of no cause or right of action, which were apparently abandoned when plaintiff filed an amended and supplemental petition. Defendants then filed a joint answer denying liability.
The trial judge rendered judgment, after hearing the evidence, rejecting relator's demands and dismissing her suit, which was affirmed by the Court of Appeal, First Circuit, 162 So. 89, 92, and on rehearing, two judges adhered to the original opinion and one dissented, 165 So. 159. The matter is now before this court for review on writs granted by us.
The basis of the defense is: First, that Roy Malbrough, the driver of the truck, was not employed by John Horecky as a chauffeur, and that in driving the truck at the time in question, he was doing so without authority from and against the orders of his employer; and, second, that the injury sustained by plaintiff's daughter was an unavoidable accident in so far as defendants are concerned, being the result of the child's negligence and carelessness in running against the trailer.
On the question of the driver's employment by Horecky and his authority to use the truck, the Court of Appeal said: "We find that Roy Malbrough, in driving this truck, at the time in question, was driving with the authority and in the service of John Horecky." A careful review of the voluminous testimony on that question convinces us of the correctness of the court's finding.
No plea of contributory negligence was filed by the defendants in the lower court, and, therefore, the main question for our consideration is whether plaintiff's contention is correct, i.e., that a proximate cause of the accident was the negligence of the driver, or defendant's contention, i.e., that the sole and proximate cause of the accident was the fault of plaintiff's child, and, therefore, the accident was unavoidable on the part of the driver of the truck.
The evidence shows that the defendant Horecky operates a wholesale grocery in the town of Church Point, and in connection therewith, for the purpose of delivering merchandise, operates eleven trucks with trailers; that Roy Malbrough was employed by defendant as a warehouse workman but was often permitted to substitute for other drivers to make deliveries in and out of Church Point, and, by acquiescence of his employer, at least, to use the truck to go to his noonday meals. Malbrough was a native of the town of Church Point and lived in the vicinity of two schools, which are located near the scene of the accident. The accident occurred about 12:15 o'clock noon on a bright clear day on the main street of the outskirts of the town, when the driver was on his way home for his noonday meal. The street is straight, 26 feet wide, unobstructed and graveled from ditch to ditch. The driver was well acquainted with the fact that it was customary for the children to walk on and along the edge of the highway to go home for their noonday lunch at about the time he went home in the truck for the same purpose. He admitted having seen the children more than a block away, walking towards him on his right side on the road, about 2 1/2 or 3 feet from the ditch, and at that time, he sounded his horn. Moreover, he admitted that even though he saw the children playing on the road, nevertheless, he continued on his right side of the road within five feet of the edge of the ditch until the front part of the truck was practically even with the children, at which time he says that plaintiff's daughter tagged one of her companions and ran towards the truck, and in order to avoid striking her, he suddenly turned the truck to the left, but in spite of his efforts to avoid her, the child ran into and struck her head on the rear right side of the trailer attached to the truck.
In the case of Danna v. City of Monroe, 129 La. 138, 55 So. 741, it was held, as expressed in the syllabus of the case:
"When the motorman and conductor of a street car see a child 20 months old in the street facing or approaching the track and in dangerous proximity thereto, the car should be brought, and kept, under control, until there no longer exists a possibility that the child will get on the track and be run over; and by bringing and keeping the car under control is meant that the motorman should cut off the power, reduce the speed, and keep the brake chain wound up, so that the car may be...
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Lee v. Peerless Ins. Co.
...be specially pleaded by the defendant in his answer in order to be considered and need not be negatived in the petition. Guillory v. Horecky, 185 La. 21, 168 So. 481; Althans v. Toye Bros. Yellow Cab Co., La.App., 191 So. 717 and cases there cited. Nevertheless, there is a well-recognized e......
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Greene v. Willey
...automobile,--held a question of fact for the jury as to whether defendant's act was the proximate cause of injury. In Guillory v. Horecky, 185 La. 21, 168 So. 481, cited by the plaintiff, the evidence showed that children were walking and playing tag on the side of the road and the driver s......
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Althans v. Toye Bros. Yellow Cab Co.
...of proof is upon the party pleading it." (Italics ours.) The Horecky case reached the Supreme Court on writs of certiorari. See 185 La. 21, 168 So. 481.There, the of the Court of Appeal (which was in favor of the defendant) was reversed on the ground that, on the facts found by the Court of......
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