Russell v. Taglialavore

• Decision Date: 02 March 1934
• Docket Number: 4616
• Citation: 153 So. 44
• Court: Court of Appeal of Louisiana — District of US
• Parties: RUSSELL v. TAGLIALAVORE et al

153 So. 44

RUSSELL v. TAGLIALAVORE et al

No. 4616

Court of Appeal of Louisiana, Second Circuit.

March 2, 1934

Rehearing denied March 29, 1934.

Cook &amp Cook, of Shreveport, for appellant.

C. B Prothro and Lyons & Prentiss, all of Shreveport, for appellees.

OPINION

TALIAFERRO Judge.

At the intersection of Jordan street and Fairfield avenue in the city of Shreveport, a few minutes before 7 o'clock a. m., August 1, 1931, the motor vehicles of the defendants, Arthur Chelette and Alphonse Taglialavore, collided, and Nellie Gray Russell, wife of plaintiff, was killed. Jordan street runs easterly and westerly. Taglialavore, in his Chevrolet truck, was traveling thereon easterly, at a rate of speed variously estimated at from 25 to 35 miles per hour. Fairfield avenue runs almost due north and south. Chelette, accompanied by two of his brothers and a colored woman, was traveling north thereon at a rate of speed less than that of the Chevrolet truck. The traffic light at the intersection was not then on. When Chelette reached the south side of the intersection, he observed the approaching truck on his left, and, believing he had ample time to cross over the south half of Jordan street before the truck would reach that point, drove into the intersection and was on the north side of the street railway track, which is in the center of the street, when run into by the truck driven by Taglialavore. The left front wheel of the truck struck the left rear wheel of the Chelette car, causing it to change its course of travel from north to west, while the truck itself, after disengaging the car, veered to its left, struck, ran over, and killed the wife of plaintiff as she was in the act of stepping from the curb on the north side of Jordan street at the northeast intersection thereof with Fairfield avenue.

Deceased left no children. Plaintiff, her surviving husband, sues Chelette and Taglialavore under article 2315 of the Civil Code (as amended by Act No. 159 of 1918), to recover $ 7,500 damages for the wrongful death of his wife. The acts of negligence imputed to defendants are clearly set up in article VI of the petition, which we quote:

"He shows that the death of the said Nellie Gray Russell was directly and proximately caused by the negligence of Alphonse Taglialavore and of Arthur Chelette in the following respects, to-wit:

"(1) That the corner of Fairfield Avenue and Jordan Street where the collision occurred, is a busy corner and there is very heavy traffic at about this time in the morning with no lights or other signal device operating at that time; that this was known to both the said Chelette and Taglialavore, and notwithstanding this fact they entered the intersection at a speed which was too great, considering the location and the ordinary condition of traffic at that point.

"(2) That the point at which the collision occurred is a business section of the city of Shreveport, and that the said Chelette and the said Taglialavore were exceeding the speed limit as prescribed by the ordinances of the City of Shreveport, which is 12 miles per hour.

"(3) That both of the said drivers did not keep a proper lookout for approaching traffic on entering the intersection.

"(4) That, alternatively, if the said drivers did observe each other, that then and in that event they did not take heed of the danger of collision, each with the other, but entered the intersection in total disregard of the other's rights."

Taglialavore denied generally the allegations of the petition, and affirmatively averred that the collision was caused by Chelette operating his car at an excessive and illegal rate of speed as he entered the intersection, and suddenly driving his car across the path of travel of the truck, thereby making a collision inevitable. He further averred that plaintiff's wife was struck and killed by the Chelette car and not by his truck, and that he was free of any sort of negligence in connection with the collision and its results. He averred additionally: "Further answering, defendant avers that should the Court find that Abner Russell and Nellie Gray went through the formalities of marriage, as prescribed by law, then and in that event defendant avers that at the date of the alleged marriage of said parties the said Abner Russell was already married to Virginia Wallace who was living at the time and not divorced from him."

Chelette generally denied the allegations of plaintiff's petition, disclaimed any responsibility on his part for the collision and death of plaintiff's wife, but averred that the negligence of Taglialavore alone was the sole and proximate cause thereof; that he was traveling in a careful and prudent manner, with due regard to the safety of himself and others; that he entered the intersection before Taglialavore did, and therefore had the right of way; that he was well past the center of the intersection when struck by the truck; that, when the truck struck his car, it (the truck) was on its wrong side of the street, and for that reason, and because of this gross negligence on the part of Taglialavore, the accident occurred.

The lower court rejected the demands of plaintiff, and dismissed his suit as to both defendants. It held that plaintiff was not the lawful husband of Nellie Gray Russell, and therefore had no cause of action to sue for damages for her death. Plaintiff has appealed.

The defense of Taglialavore propounds two questions of law and one of fact, viz.:

(1) That plaintiff and decedent were never legally married. That is, the legal formalities were not complied with.

(2) That plaintiff and decedent could not contract a valid marriage because plaintiff was the husband of one Virginia Wallace, and not divorced from her.

(3) That defendant Taglialavore in no way contributed to the accident, but that the negligence of defendant Chelette was the sole cause thereof.

So far as Chelette is concerned, plaintiff makes no serious contention here that the collision of the vehicles and the death of his wife were caused by this defendant's negligence. Hence he will be dismissed by us from further consideration. The evidence clearly absolves him from any blame or negligence whatever.

There is no merit in the first proposition advanced by defendant. It is argued that, because the proces verbal of the act of celebration of the marriage of plaintiff and Nellie Gray was signed by only one witness, such marriage was null and void, in view of article 105 of the Civil Code, which requires three witnesses to the marriage, who must sign the act of celebration. The testimony discloses that there were as many as three witnesses present at the marriage, though only one signed the act of celebration. It has been held by many cases that the articles of the Code providing the manner and method of contracting and celebrating marriages are merely directory to the celebrant, and that the failure to technically observe them does not strike the marriage with nullity. Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482; Succession of Hubee, 20 La.Ann. 97; Succession of Pearce, 30 La.Ann. 1168; Sabalot v. Populus, 31 La.Ann. 854; Succession of Fortier, 51 La.Ann. 1562, 26 So. 554; Landry v. Bellanger, 120 La. 962, 45 So. 956, 15 L.R.A. (N. S.) 463, 14 Ann. Cas. 952; Succession of St. Ange, 161 La. 1085, 109 So. 909.

The second question raised by the defense presented a serious legal proposition, far-reaching in its effect and importance, res nova in our jurisprudence, and, due to such importance and the bearing a decision of it will have upon scores of marriage contracts and divorces rendered in the state, we certified the question to the Supreme Court and asked for instructions. The opinion of the court and instructions to us are as follows (178 La. 840, 152 So. 540): "O'Niell, C. J. "The Court of Appeal for the Second Circuit, acting under authority of section 25 of Article 7 of the Constitution (1921), asks for instruction on a question of law arising in a case which has been argued and submitted to the court for decision.

"The facts, from which the question arises, are stated by the Court of Appeal. Abner Russell brought this suit against Alphonse Taglialavore and others for damages for the death of Mrs. Nellie Gray Russell, who, the plaintiff alleged, was his wife. She was killed in an automobile accident, in which, the plaintiff charges, the defendants were guilty of negligence. They pleaded in their answer to the suit that when the plaintiff married Nellie Gray he was already married, and not divorced, and hence that his marriage to Nellie Gray was null. The facts in that respect are stated also by the Court of Appeal. Abner Russell married Virginia Wallace in March 1907, in Caddo Parish, where they were residing and continued to reside. On the 20th of March, 1916, while Abner Russell and his wife, Virginia Wallace Russell, were yet residing in Caddo Parish, he brought suit against her in the Second District Court, in Bossier Parish, for a divorce, on statutory grounds. He alleged in his petition that he and his wife were residents of Caddo Parish and were married in that Parish, which is adjacent to Bossier Parish, but was not in the same judicial district. On the same day on which the suit was filed in Bossier Parish, the wife filed an answer denying every allegation in the petition, except the allegation that she was the plaintiff's wife. She did not except to the jurisdiction of the court. On the next day after the answer was filed, the case was taken up and tried and a judgment of divorce rendered in favor of the plaintiff. Two days afterwards he married Nellie Gray.

"The question propounded by the Court of Appeal is whether the district court in Caddo Parish had jurisdiction to render the judgment of...