Pendola v. State

• Decision Date: 08 October 1941
• Docket Number: 2269.
• Court: Court of Appeal of Louisiana — District of US
• Parties: PENDOLA ET AL. v. STATE. LOCOCO v. STATE.

4 So.2d 28

PENDOLA ET AL. v. STATE.

LOCOCO v. STATE.

No. 2269.

Court of Appeals of Louisiana, First Circuit

October 8, 1941

Rehearing Denied Nov. 19, 1941.

Writ of Error Refused Jan. 5, 1942.

Tom M. Hayes Jr., of Baton Rouge, for appellant.

Johnson &amp Kantrow, of Baton Rouge, and J. B. Thornhill, of Monroe, for appellees.

LeBLANC Judge.

These consolidated appeals come before us from a judgment rendered in each of the two cases which were consolidated for trial in the court below as both demands arose out of the same automobile accident. In the first suit the plaintiffs are Anthony Pendola, owner and driver of one of the cars involved in the accident, Mr. & Mrs. J. B. Cascio, father and mother of the minor child, Celia Mae Cascio, and for whose use and benefit they appear, and Lula Johnson, a colored girl nurse. In the other suit the plaintiff is Ignatius Lococo who sues for the use and benefit of his minor daughter, Josephine Lococo. Josephine Lococo, Celia Mae Cascio and Lula Johnson were all passengers in the Pendola car in which they were travelling with him from Baton Rouge to Monroe, Louisiana. A young man named Santa Cuchinnatto was also in the car with them but is not a party to any of this litigation.

The Pendola car left Baton Rouge at about 8 o'clock of the morning of July 12, 1934, crossed the Mississippi River at the Port Allen ferry and was proceeding west on its journey along highway No. 71 in the direction towards Alexandria Louisiana. When it reached a point in the vicinity of the "Y" formed by the intersection of the highway leading to New Roads with Highway No. 71, it collided with an automobile belonging to the Louisiana Highway Commission and being driven by one of its employees, J. Monroe Higginbotham, in an easterly direction towards Baton Rouge. Issue was raised by the pleadings concerning the nature of Higginbotham's mission at the time of the accident but the proof was, and it now seems to be conceded, that he was engaged in the course and scope of his employment and therefore the doctrine of respondeat superior should prevail in the event the negligence he is charged with is shown to have been the cause of the accident.

The allegations of the plaintiffs in both suits regarding the manner in which the collision occurred are substantially the same. In effect, they are that the Pendola car was proceeding on its right hand side of the paved portion of the highway at a speed not in excess of forty miles per hour when the driver noticed the other car approaching from the opposite direction at a high rate of speed and going first to one side of the road and then to the other. That the driver of the Pendola car reduced its speed, expecting the other car to go over to its right side of the highway. Finally it did pull over on that side and, Pendola, believing as he had a right to, that it would remain in its lane of travel, accelerated the speed of his car to pass by it but all of a sudden the driver did something which caused his car to turn almost completely in the path of the Pendola car and although Mr. Pendola quickly applied his brakes and kept well on his side of the road, he was unable to avoid running into the other car with the resulting damage and injuries complained of in both suits. Negligence is charged against Higginbotham for the reckless and careless manner in which he operated the car he was driving and for which his employer, the Louisiana Highway Commission, is sought to be held in damages.

The various amounts of damages claimed in the first suit are as follows: Anthony Pendola, $14,242.22, including those for personal injuries consisting of a fracture of the patella of the right leg, two broken ribs, lacerations of the lip and gums, loosening of three front teeth, as well as doctors and medical expenses and damages to his automobile. Celia Mae Cascio, $2,000 for physical pain and injuries which consisted of a fracture of the nose, maceration of the inferior turbinate and laceration of the upper lip. Lula Johnson, $1,000 for personal injuries which consisted of severe laceration of the right knee and contusions of the leg and neck. In the second suit the damages claimed are those alleged to have been sustained by Josephine Lococo, minor daughter of the plaintiff, consisting of a severe laceration on the right side of the face with a resulting ugly scar and three broken teeth in the front of her mouth also causing serious disfigurement. The demand is for $11,000.

The defense in both cases is the same and practically a denial of the negligence charged against the driver of the highway commission car and a consequent denial of liability. As previously indicated the answer in each case also contained a denial that the driver, was, at the time, acting in the course and scope of his employment but that issue appears to have now passed out of the cases.

After trial in the district court there was judgment in favor of the plaintiffs in each suit as follows: Anthony Pendola, $6,327.22, Mr. & Mrs. J. B. Cascio for the use and benefit of their minor child, $1,000, Lula Johnson, $750 and Ignatius Lococo, for the use and benefit of his minor daughter, $4,000. An appeal has been taken in each case and an answer has been filed on behalf of each plaintiff, asking for an increase in the amount of each award.

Highway No. 71, running east and west, is straight for a distance of at least a half mile in each direction from the point where the accident took place. The paved portion measures 20 feet in width but at the "Y" forming the junction with the highway leading to New Roads it widens into a four lane highway, the concrete strip there measuring 41 feet in width. The dirt shoulder on the south side is 4 ft. 6 in. wide and the one on the north, 24 ft. 6 in.

The preponderance of the testimony shows that Mr. Pendola was driving his Buick sedan at about 50 miles per hour at the time he observed the Highway Commission car, a DeSoto sedan approaching the "Y" at a rapid rate of speed. Higginbotham admits that he was going between 50 and 60 miles an hour. According to the witnesses who occupied the Pendola car it appeared to them from the manner in which the DeSoto car was zigzagging that the driver probably intended to turn north into the New Roads highway, but evidently he did not as he continued on his way east. Mr. Pendola, noticing this retarded his speed and then the DeSoto got into its right lane of travel. Mr. Pendola then accelerated his speed in order to pass it but as both cars approached the eastern end of the "Y", the DeSoto made a complete "U" turn in front...