Lorance v. Smith

• Decision Date: 30 November 1931
• Docket Number: 31297,31298
• Citation: 173 La. 883,138 So. 871
• Court: Louisiana Supreme Court
• Parties: LORANCE v. SMITH et al. GRANTHAM v. SAME

138 So. 871

173 La. 883

LORANCE v. SMITH et al.

GRANTHAM v. SAME

Nos. 31297, 31298

Supreme Court of Louisiana

November 30, 1931

Rehearing Denied January 4, 1932

Judgment of Court of Appeals set aside, and suits dismissed.

Harvey E. Ellis and Frank B. Ellis, both of Covington, for applicants.

Lewis L. Morgan and J. Monroe Simmons, both of Covington, for appellants Mr. and Mrs. W. R. Smith and Randolph Morgan.

Benj. M. Miller and Fred J. Heintz, both of Covington, for appellee R. J. Kendall.

ODOM J. O'NIELL, C. J., concurs in the decree, but not in the approval of the ruling in Pipes v. Gallman.

OPINION

ODOM, J.

These are damage suits growing out of injuries sustained in an automobile collision which took place January 19, 1929, on the public highway which runs from Covington to Mandeville, La., between a Ford coup belonging to Mr. and Mrs. W. R. Smith, and a Chevrolet car owned and driven by R. J. Kendall.

During the late afternoon on January 19, 1929, Walter Smith, Clark Morgan, Alphonsine Lorance, and Mrs. Adelia Menant left Mandeville in St. Tamany parish to go to Covington to attend a picture show, riding in a Ford coup, a car with only one seat, all four riding on the seat together, traveling on a graveled highway twenty-four feet wide. While on their way back, about nine o'clock, their car collided on the road with a Chevrolet owned and driven by R. J. Kendall. Alphonsine Lorance was injured, and Mrs. Menant was instantly killed.

The Ford car in which they were riding was owned by W. R. Smith, who had permitted his minor son Walter to use it. At the time of the accident the car was being driven by Clark Morgan, the minor son of Randolph Morgan.

Mrs. Adelia Menant, who was killed, left a minor child about seven years old, who is represented by its grandfather as dative tutor.

Mrs. Jennie Lorance, mother of Alphonsine Lorance, who was fifteen years old, and the dative tutor of Mrs. Menant's child, prosecute the present suits against the parents of Walter Smith and Clark Morgan and against R. J. Kendall for damages, it being alleged that Alphonsine Lorance and Mrs. Menant were the invited guests in the car of Walter Smith and Clark Morgan, and that their injury and death were due solely to the joint negligence of Smith, Morgan, and Kendall.

The specific acts of negligence charged against the defendants are set out in articles 14, 15, 16, and 17 of Mrs. Lorance's petition, which are identical with those found in the other petitions, said articles being as follows:

"That said Collision and the damages resulting therefrom were due to the gross negligence of Walter Smith, Clark Morgan and R. J. Kendall, in this:

"That Clark Morgan was driving said car at the rate of fifty miles or more per hour at the time of said accident, on a foggy night, going down a decline, entering a dangerous curve which lead to a narrow concrete bridge across Pantchatalawa Creek; that said Ford runabout was built for the accommodation of two persons, whereas there were four persons riding in said runabout, thereby making it impossible, due to the crowded condition of said car, for Clark Morgan to operate said car with safety, particularly at an unlawful rate of speed, on a foggy night.

"XV. That Walter Smith was guilty of gross negligence in inviting three persons as his guests to ride in a Ford runabout built for two and in allowing and consenting to Clark Morgan's driving said car in its crowded condition at an excessive and unlawful rate of speed of fifty or more miles per hour, on a foggy night, and especially down a decline and entering a curve which approached a narrow concrete bridge across Pontchatalawa Creek, and allowing and consenting to said Clark Morgan's continuing said rate of speed without the speed of said car being reduced when another car was seen approaching in the center of the road and coming around a dangerous curve, all of which was in violation of law; that the negligence of Clark Morgan was imputable to Walter Smith.

"XVI. That R. J. Kendall was guilty of negligence in driving around a dangerous curve at a speed of twenty miles an hour, particularly on a foggy night, and in not driving on the right side of the road, particularly when he saw said Ford car approaching from the opposite direction in which he was going, but continuing to drive his car in the center of said road up to the time of the collision, all of which was in violation of law.

"XVII. That due to the manner in which said cars were being operated, as hereinabove set forth, the said Clark Morgan, Walter Smith and R. J. Kendall were each guilty of directly contributing to said accident and the said minor, Alphonsine Lorance was not guilty of contributing in any wise to said accident, which resulted in her injuries."

The defense of Smith and Morgan is, first, that their sons were not guilty of any negligence, but that the collision and resulting injury were due solely to the fault and negligence of Kendall, the driver of the Chevrolet car, and, second, that Miss Lorance and Mrs. Menant were not the invited guests of their sons, but that all four were out on a joy ride with a common purpose; that the ride was a joint enterprise, and that the four were joint adventurers, and therefore if it should be held that their sons were negligent, as alleged, they were the agents of the other two, who cannot recover for that reason. They especially deny plaintiffs' allegation that Miss Lorance and Mrs. Menant were not guilty of contributory negligence.

As to Kendall, his defense is that he was in no way negligent in the handling of his car, and he alleges that the accident and injury were due solely to the negligence of the driver of the Ford car.

Each of the defendants excepted to the petition of Mrs. Lorance on the ground that she could not, in her own name, bring the suit for her minor child, her husband, from whom she was not divorced, being present and not joining in the suit.

The district court granted judgment for plaintiffs and defendants appealed to the Court of Appeal, First circuit, where the judgment appealed from in favor of Mrs. Lorance was reversed on the technical ground that the suit should have been brought by the father and not by the mother of the minor, and affirmed as to the other plaintiff.

Mrs. Lorance and defendants applied to this court for writs of review, which were granted, and the cases are before us in response to the writs.

Under the view which we take of the cases on the merits, it is unnecessary to discuss the issue raised by Mrs. Lorance in her application for the writ, as the cases are with the defendants for reasons which we shall presently state.

We first take up the question whether Kendall, the driver of the Chevrolet car, was in any way responsible for the collision. The case is before us on the merits, and it is not only within our province, but it is our duty to consider the facts involved as well as the law applicable, and while this court is always reluctant to set aside the verdict of a jury or the judgment of a trial court in civil cases on questions of fact, yet we feel impelled to do so in this case, as our appreciation of the testimony leads us to the conclusion that the judgment against Kendall is manifestly erroneous.

These plaintiffs alleged and proved beyond question that young Morgan, driver of the Ford, was grossly negligent in its operation. He was driving down grade at a speed above fifty miles an hour, a speed greatly in excess of that fixed by law, on a foggy, misty night at a dangerous point on the road, paying but little if any attention to whether he was on his side, in the center, or on the wrong side of the road. The trial judge correctly said in his written opinion:

"The Court is satisfied from all the testimony that the Ford roadster was being driven at all the speed that it could possibly make; these young people in there were out for a good time, and the Court is satisfied that they were paying but little if any attention either to their speed or to their position on the road."

Referring again to the testimony as to the negligence of operators of the Ford, Morgan says he was driving on his right side of the road and had room to pass the other car, but that about the time the two cars met the Kendall car "cut into him." He does not say that Kendall was driving on the wrong side of the road, but that he cut his car suddenly to the left just as the two were meeting, and that if Kendall had not cut his car they would not have collided. Walter Smith gave substantially the same testimony. Young Morgan says also at one time that he does not know how far the Kendall car was from him when he first saw it, and again that it was probably not more than fifty feet away.

We here quote his testimony found on page 98:

"Q. How far off were you when you first saw the Chevrolet or Kendall car? A. I can't just say.

"Q. About how far? A. It happened so quick I don't remember how far it was.

"Q. The road was perfectly straight there, was it? A. Right where the accident happened it was.

"Q. Did you see him before you got to him? A. Just a little distance.

"Q. How far -- twenty feet, or how far? A. About fifty feet.

"Q. You think you didn't see him until he was in fifty feet? A. I saw it ahead of us. I didn't pay any attention until it got close. I could see he was in the middle of the road."

He says he then slowed down as much as possible, but could not avoid the collision. The uncontradicted testimony is that the road is straight for more than half a mile there, and, even though it was a foggy night, the headlights of an approaching car could have been seen that distance. Young Morgan does not say he could not see the car before he did, but that he did not pay...