Norman v. City of Shreveport

• Decision Date: 22 May 1962
• Docket Number: No. 9728,9728
• Citation: 141 So.2d 903
• Court: Court of Appeal of Louisiana — District of US
• Parties: Dudley D. NORMAN et ux., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.

Page 903

141 So.2d 903

Dudley D. NORMAN et ux., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.

No. 9728.

Court of Appeal of Louisiana, Second Circuit.

May 22, 1962.

Rehearing Denied June 14, 1962.

L. G. Campbell, Bossier City, for appellants.

J. Bennett Johnston, Jr., Loret J. Ross, Shreveport, for appellee.

Before HARDY, GLADNEY, AYRES, and BOLIN, JJ.

GLADNEY, Judge.

Plaintiffs have appealed from a judgment rejecting their demands. Dudley J. Norman and his wife brought suit against the City of Shreveport for damages as a result of an automobile-fire truck collision, in which Mrs. Norman sustained serious personal injuries. The accident occurred December 16, 1958, in the intersection of Olive Street and Centenary Boulevard, about midafternoon, with weather conditions normal. A prior suit by these plaintiffs was filed within a year after the occurrence, but the suit was dismissed on an exception of no cause or right of action based on grounds of municipal immunity. The present action was instituted December 28, 1960, only after enactment by the Louisiana State Legislature at its 1960 Regular Session, of House Concurrent Resolution No. 70, which authorized the prosecution of this claim with waiver of the defendant's immunity both from suit and from liability. At the same Legislative session, Act 621 of 1960 was enacted as an amendment to Art. III, Section 35 of the Louisiana Constitution, LSA, the act empowering the Legislature to waive the immunity from suit and from liability of the State and its agencies and other governmental bodies. This proposed amendment was voted into law by the people of the State.

Counsel for the defendant pleaded that its exception of no cause of right of action sustained as to the prior suit is res judicata for the present suit; that House Concurrent Resolution No. 70 of 1960 and Act 621 are unconstitutional as being contrary to the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution; that a peremptory exception of no cause or right of action filed by the defendant should be sustained as to damages claimed for plaintiffs' automobile, forasmuch as a conventional subrogation had been executed to an insurance company, thus leaving plaintiffs with no real or actual interest in the subrogation claim; and further, it is averred that the claim for automobile damage is prescribed. The defendant also invoked the last clear chance doctrine. In its answer, the City denied negligence attributable to John D. Harris, Jr., the City employee driving the fire truck, and averred the accident was solely caused by the gross negligence of Mrs. Norman, the driver of the automobile, in several particulars, including: Proceeding through the intersection after hearing the siren blowing; in failing to keep a proper lookout; in driving at an excessive rate of speed; and in failing to immediately stop her automobile upon the approach of the fire truck as required by Section 19--48 of the Shreveport City Code. ¹

Petitioners allege Harris was grossly negligent in driving the fire truck at an excessive rate of speed, in failing to keep a proper lookout, in failing to warn approaching vehicles, and in driving in a careless manner with disregard of the safety of others. It is also alleged that Mrs. Norman entered the intersection on a green light. The City is further charged with negligence in that it maintained an improper offset crossing at the intersection of Olive Street and Centenary Boulevard, in failing to provide the proper system of traffic lights, and that on this particular mission its employees in charge of the fire truck were negligent in failing to use the shortest and least dangerous route to reach their ultimate destination, the scene of a reported fire.

Upon the issues so presented, the case was fully tried on its merits. After the taking of testimony was concluded the trial judge remarked from the bench that in his opinion both drivers were guilty of negligence but that no plea of contributory negligence had been filed on behalf of the defendant. Thereupon, and prior to argument, counsel for the City tendered a special plea of contributory negligence which the court allowed as an amendment to the answer. The judgment of the court rejecting plaintiffs' demands were principally based upon this plea.

Although the industry of counsel on both sides has produced a number of pleas and issues in the trial court, we purposely refrain from considering certain of these as they were either not established by the evidence, or were manifestly without merit. Other issues have been abandoned on appeal. Resolution of the case primarily turns upon the question of whether or not the trial court committed reversible error by its consideration of the plea of contributory negligence.

At the outset we observe that prior to the Code of Civil Procedure, which became effective January 1, 1961, the issue would have been resolved in favor of appellants and consideration of the plea would have been denied. Lobell for Use and Benefit of Hardware Mut. Cas. Co. v. Neal, La.App., 48 So.2d 797 (1st Cir. 1950); Service Fire Insurance Company of New York, et al. v. Suezy, La.App., 77 So.2d 110 (1st Cir. 1954); Calvert Fire Insurance Company v. Lewis, 83 So.2d 139 (La.App.Orleans 1955), reversed on other grounds 231 La. 859, 93 So.2d 194.

Although Article 1005 of the LSA-Code of Civil Procedure expressly requires contributory negligence to be specially pleaded, the provisions of Articles 862, 1154, 2164 and 5051 of the Code have incorporated into our procedural rules the philosophy that such rules are only a means to an end, and not an end in themselves. ² Undoubtedly, the requirement in the answer of an affirmative plea of contributory negligence has for its purpose the giving of fair notice of the nature of the defense, and preventing surprise. This is evidenced by the following Federal Court decisions applying Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the source of our own Article 1005 of the Louisiana Code of Civil Procedure, LSA. Sly v. United States, 125 F.Supp. 89 (D.C.Ill.1954), reversed on other grounds 220 F.2d 212 (7th Cir. 1955); Edmonds v. United States, 148 F.Supp. 185 (D.C.Wis.1957).

Article 2164 empowers an appellate court to render any judgment which is just, legal, and proper upon the record on appeal. An authoritative comment under this article states its purpose is to give an appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below. This article insures that the 'theory of the case' doctrine is not applicable to appeals. Of particular importance in dealing with the question of whether the trial judge erred in his consideration of the plea of contributory negligence is Article 1154, which allows, within the discretion of the court, the resolution of issues which may not have been raised by the pleadings. Under this article the law has been changed to authorize the trial judge to permit amendments, even on the trial of the case, so as to plead the material facts supporting an affirmative defense pleaded only generally or as a legal conclusion in the original answer. See Official Revision Comments under LSA-C.C.P. Arts. 854, 862 and 1154. In respondent's original answer, the particular acts alleged to constitute the gross negligence of Mrs. Norman were expressly stated in paragraph 24 of the answer. The plea of contributory negligence as filed declared Mrs. Norman was contributorily negligent by reason of those same...