Johnson v. Wilson

• Decision Date: 15 February 1960
• Docket Number: No. 43867,43867
• Citation: Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (La. 1960)
• Parties: Clarence V. JOHNSON v. James R. WILSON.
• Court: Louisiana Supreme Court

Page 450

118 So.2d 450

239 La. 390

Clarence V. JOHNSON v.James R. WILSON.

No. 43867.

Supreme Court of Louisiana.

Feb. 15, 1960.

Rehearing Denied March 21, 1960.

Seale, Hayes, Smith & Keogh, Baton Rouge, for applicant.

Joseph A. Gladney and J. H. Percy, Jr., Baton Rouge, for respondent.

McCALEB, Justice.

This suit for damages arises out of an automobile accident occurring at approximately 1:00 p.m. on November 28, 1955, about eight miles north of Baton Rouge on Plank Road, a two-lane two-way hard surfaced highway, when an automobile owned and driven by plaintiff struck a pickup truck owned and operated by defendant.At the time of the accident, plaintiff was attempting to overtake and pass the truck which defendant had edged over the center line of the roadway preparatory to making a left turn onto the premises of his servant.

Plaintiff instituted the action to recover damages to his car, amounting to $608.30, charging that the accident was attributable solely to the negligence of defendant.This was denied by defendant in his answer and he, having sustained personal injuries in the accident, reconvened for $235,965.37.He alleged that plaintiff was grossly negligent and, alternatively, pleaded contributory negligence and the doctrine of last clear chance.

The case was tried on these issues before a jury and resulted in a verdict for defendant in the sum of $8,507.37.Judgment was rendered in accordance with this verdict and plaintiff appealed therefrom to the Court of Appeal, First Circuit, where the judgment was affirmed.SeeJohnson v. Wilson, 97 So.2d 674.At plaintiff's instance we granted a writ of certiorari ¹ and the case has been argued and submitted for our decision.

There is no important disagreement between the parties as to the facts of the case as found by the Court of Appeal.Nor does counsel for plaintiff take serious issue with that court's ruling that plaintiff was guilty of negligence in striking the Wilson car in that he was travelling at a speed in excess of 60 miles per hour (in violation of Section 223 of the Motor Vehicle and Traffic Regulation Statute, R.S. 32:223) and was somewhat inattentive in his driving when he attempted to overtake and pass defendant's truck.

On the other hand, counsel proclaimed that the Court of Appeal erroneously exonerated defendant from blame in view of the uncontroverted facts which disclose that defendant violated positive provisions of law, R.S. 32:235(B), in crossing over the center line of the highway in order to negotiate a left turn and that he was also imprudent in pulling into the left lane without looking into his rear view mirror immediately before undertaking such a movement.

We think that this complaint is well founded in law.The facts of the case are substantially as follows:

At the place of the accident the highway runs relatively straight and flat in both directions.Defendant testified that he was about 500 feet from where he was to turn left into his servant's driveway when he first noticed, in his rear view mirror, the Johnson car which was at that time between one-fourth and one-half a mile behind him; that he was travelling at a speed of 35 miles per hour, so he slowed down, rolled down his window glass and stuck his arm straight out as a signal of his intention to make a left turn; that, when he was 80 to 100 feet from the driveway, he looked in his mirror again and saw the Johnson car 300 to 400 feet behind him; that he never looked back for the overtaking car again and that, when he was 70 feet from the driveway, having meanwhile slowed his speed to 20 miles per hour, he edged over the center line of the highway and began a gradual left turn, believing that the Johnson car would pass him on his right.

When defendant's truck reached a point 35 feet from his servant's driveway, the left front wheel was approximately four feet left of the highway center line and the left rear wheel about two feet left of the center line.It was at this point that the right front fender of the Johnson car collided with the left rear fender and wheel of defendant's truck, displacing the wheel and causing the truck to overturn.

We think the foregoing facts plainly exhibit that defendant was guilty of negligence which substantially contributed to the accident and but for which the accident would not have happened.However, we intermit our discourse on this subject to dispose of the contention made here, and in the lower courts, by defendant's counsel that plaintiff may not urge contributory negligence because he did not specially plead that defense by way of answer to the reconventional demand.Counsel say that Article 377 of the Code of Practice requires that a plaintiff file written answer to a reconventional demand and that the Court of Appeal, Second Circuit, in Young v. Geter, 174 So. 661 has indicated that whenever a plaintiff relies upon a special defense to defeat a reconventional demand, such defense must be formally pleaded.

Counsel's position is not tenable.Article 329 of the Code of Practice declares that when the defendant alleges new facts in his answer '* * * these shall be considered as denied by the plaintiff; therefore neither replication nor rejoinder shall be admitted.'Conformably with this article, the Court has held on numerous occasions that, since neither replication nor rejoinder are admitted under our pleadings, the allegations of an answer are open to any objections of law and fact without special plea and that, if the defendant is taken by surprise, the proper remedy is a continuation or a new trial.Patton's Heirs v. Moseley, 186 La. 1088, 173 So. 772;Roy O. Martin Lumber Co. v. Hodge-Hunt Lumber Co., 190 la. 84, 181 So. 865;Lee v. Perkins, 195 La. 939, 197 So. 607;Galiano v. Galiano, 213 La. 332, 34 So.2d 881;Cheramie v. Stiles, 215 La. 682, 41 So.2d 502andLoew's Inc. v. Don George, 227 La. 127, 70 So.2d 534.

Article 377 of the Code of Practice, relied on by defense counsel, provides that reconvention may be pleaded by a defendant either as an exception in his answer to the principal demand or he may institute a distinct and separate demand before the court in which the main demand is pending '* * * and the original plaintiff shall be bound to answer without pleading to the jurisdiction of the court, even, if he has his domicil elsewhere, * * *'.The quoted provision that the original plaintiff shall be bound to answer without pleading to the jurisdiction does not mean, as counsel contend, that a written answer shall be filed to the reconventional demand.Hobson v. Woolfolk, 23 La.Ann. 384;Lamorere v. Avery, 32 La.Ann. 1008andBurge v. Batson, 149 La. 542, 89 So. 687.It simply signifies that the original plaintiff may not question the jurisdiction of the court'* * * even if he has his domicilelsewhere * * *' since he has submitted himself to the court's jurisdiction by filing the original demand.The article must be read in connection with Article 329 of the Code of Practice which prohibits replications and rejoinders and, when thus considered, it cannot be construed (as contended by counsel) to require a formal answer or special plea to a reconventional demand.The statement in Young v. Geter, supra, indicating a contrary view, was wholly unnecessary to the decision of the case and, hence, is to be regarded as pure dictum.

Returning, now, to the issue of defendant's...