Lobell, for Use and Benefit of Hardware Mut. Cas. Co. v. Neal, 3294
| Decision Date | 22 November 1950 |
| Docket Number | No. 3294,3294 |
| Citation | 48 So.2d 797 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | LOBELL, for Use and Benefit of HARDWARE MUT. CAS. CO. v. NEAL. |
Durrett & Hardin, Baton Rouge, for appellant.
Chester E. Martin, Baton Rouge, for appellee.
This suit involves an automobile collision which happened at the intersection of Prescott Lane and Hanks Drive at approximately 5:30 P.M. in the city of Baton Rouge, Louisiana, on March 23, 1949. The plaintiff was driving west on Prescott Lane and the defendant was driving south on Hanks Drive. The plaintiff's automobile was insured with a $50 deductible proviso, and the insurance company paid to him $207.02 and he is, therefore, suing for the use and benefit of the insurance company for such amount, and individually asking judgment for the $50 deducted.
Defendant filed an exception of no right or cause of action which it is not necessary to discuss as this particular exception is not raised on appeal. Defendant then filed a general denial and further answered alleging that the sole proximate cause of the collision was acts of negligence and violations of law by the plaintiff as follows:
Defendant followed these specific charges of negligence with a reconventional demand.
The case was duly tried on February 24, 1950 and at its conclusion the trial judge indicated that he believed that both parties were negligent but that there was no plea of contributory negligence filed by the defendant. On March 7th, 1950 the defendants filed a petition accompanied by a rule to reopen the case in order that he might amend his answer so as to include the special plea of contributory negligence.
On March 14, 1950 plaintiff filed another exception of no cause and no right of action. It was defendant's theory that the negligence of both litigants being the proximate cause of the accident and damage, therefore, under Article 2315 of the Civil Code neither could recover.
The trial court with written reasons refused to reopen the case so as to allow defendant to amend and supplement his answer by supplying the decree of contributory negligence for the reason that the case had been tried on its merits and it was his opinion that such could not be done under the authority of Martin v. Toye Bros. Yellow Cab. Co., La.App., 162 So. 257 and Moore v. Davis, La.App., 196 So. 566.
On the merits, the District Court, under the authority of Parker v. Home Indemnity Co. of New York, La.App., 41 So.2d 783 and authorities therein cited, namely, Ryan v. Louisville, N. O. & T. Ry. Co., 44 La.Ann. 806, 11 So. 30; and Baden v. Globe Indemnity Co., La.App., 146 So. 784, held that as plaintiff's own evidence reflected his contributory negligence, it must be accepted without regard to the omission of such a plea on the part of the defendant, and further held that the defendant was also guilty of negligence and, therefore, rendered judgment dismissing plaintiff's suit at his cost, and dismissing the reconventional demand of defendant at his cost.
Plaintiff appealed from the judgment of the District Court and the defendant has answered the appeal, reurging all questions previously presented to the District Court.
An examination of the pleadings in this case in connection with the settled jurisprudence leaves but one decision on the question of whether the defendant has plead contributory negligence, and the answer must be in the negative. Buechner v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L.R.A. 334 McDonald v. Stellwagon, La.App., 140 So. 133; Althans v. Toye Bros. Yellow Cab Co., La.App., 191 So. 717; Nezat v. General Outdoor Adv. Co. La.App., 24 So.2d 482.
Defendant contends that all the facts necessary to a plea of contributory negligence have been set out in his pleadings and that he had only failed to name the plea and set it forth in the alternative, and that under the liberal trend it should be considered as such a plea. The cases above cited, and there are many more, are squarely against defendant's argument and are practically identical as to the pleadings in those cases and in the present, in that the defendant denied plaintiff's allegations and then specifically and with particularity alleged in his answer that the negligence of the plaintiff was the sole and proximate cause of the accident.
The defendant next contends that the trial judge erred in refusing to permit the case to be reopened for the purpose of specially pleading contributory negligence. Counsel for defendant cites many cases in which amendments were allowed but none in which a litigant was given the right to amend by pleading contributory neglignce after a complete trial on the merits and submission of the case. We do not believe that the judge abused his discretion in refusing this plea as the case had been completed and submitted and had he done so counsel for plaintiff could have demanded an entire new trial, as it would have injected a new issue in the case.
It is shown that Prescott Lane was a black-topped street while Hanks Drive was a graveled street, both approximately 18 feet in width not counting the shoulders, and at this intersection there were no stop signs and there was no city ordinance favoring either as a right of way street. The defendant was traveling south on Hanks Drive and intended to turn to his right on Prescott Lane and testified that he approached the intersection at a speed of approximately 20 or 25 miles per hour but applied his brakes in order to make a right hand turn and was proceeding at approximately five miles per hour on the right side of the street when he came out into the intersection and estimated that he could not have been going over five or ten miles an hour at the time of the collision. He further stated that he never saw the plaintiff until the moment of the collision.
Both the defendant and the plaintiff testified that on the northeast corner of the intersection to the defendant's left and the plaintiff's right there was brush which obstructed the view to a certain extent.
It is shown that the plaintiff approached the intersection driving on the right hand side of Prescott Lane at a speed of 30 to 35 miles per hour and did not see the defendant's car until after the impact. His explanation of this was that there was some car of defendant. The front end of defendant's car was damaged and the testimony was that the right front fender, right front door, center post and rear right door of plaintiff's car were damaged. It is evident that the front of the defendant's automobile struck plaintiff's Buick on the front fender and that the other damage was a continuation of the original contact.
It is plaintiff's contention under this state of facts that he had pre-empted the intersection. It is true that evidently the front portion of plaintiff's car had crossed the center line of the intersection, however, we do not believe that the facts show a pre-emption. Rather, we think, as did the trial judge, the both parties were guilty of negligence which was the proximate cause of the accident. Neither party looked or even attempted to look before entering the intersection, and plaintiff's speed of 30 to 35 miles per hour, while in itself not excessive, was excessive under the facts and circumstances in this case. He contends that this was somewhat of a blind corner but the fact remains that both streets were 18 feet in width not counting the shoulders, which would give each the opportunity to see the other in time to avoid a collision had each looked, and had the plaintiff been proceeding at a reasonable rate of speed at the time he reached the point where he was able to see the defendant's car the accident would not have occurred.
The serious question in this case, however, is the failure to specifically plead contributory negligence and whether the plaintiff by his own testimony has supplied such a plea, which will be hereinafter discussed.
After the accident, defendant gave to the plaintiff the following written authorization: ' Plaintiff contends that this written statement is an admission which is binding and relies upon the case of Dunigan v. Haynes, La.App., 26 So.2d 710. In that case the Court did not decide the case alone upon the admission of the defendant but clearly found additional facts upon which it concluded that the defendant was at fault.
In the case of Howze v. Hollandsworth, La.App., 26 So.2d 381, 385, the Court stated:
'Even if plaintiff was rational and knew what was going on, and made the statement that she was to blame, if the evidence shows otherwise, the fact that she made the statement would not bar her recovery.
"Responsibility for an accident is a mere legal conclusion. A party to a collision is not bound by a statement that he does not hold the other responsible.' Lowery v. Zorn et al., La.App., 157 So. 826, 829.'
In Buwe v. Daste, La.App., 43 So.2d 173, 176, the Court, in commenting upon the holding in Howze v. Hollandsworth, supra, stated: ...
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